tf ' 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 Bookbinders, 
 
 PRIIfTKKS, 
 
 LAW I! 
 
 TORONTO 
 
 PUBLISHERS. etc. 
 
 ONT.
 
 CANADIAN 
 CRIMINAL PROCEDURE 
 
 AS THE SAME RELATES TO 
 
 Preliminary Hearings, Summary 
 Convictions and Summary Trials 
 
 WITH AN APPENDIX OF FORMS 
 
 Compiled by 
 
 THE HON. T. MAYNE DALY, P.C.. K.C. 
 
 Of the Manitoba Bar, Police Magistrate, Winnipeg 
 
 SECOND EDITION 
 
 By GEORGE PATTERSON, K.C. 
 
 of Winnipeg 
 
 THE CARSWELL COMPANY, LIMITED 
 
 19 DUNCAN STREET, TORONTO 
 
 1915 
 
 LONDON : 
 SWEET & MAXWELL, LIMITED
 
 COPYRIGHT: CANADA, 1915, BY THE CABSWELL Co., LIMITED.
 
 TABLE OF ABBREVIATIONS. 
 
 CANADIAN REPORTS. 
 
 
 V) 
 
 Alta. L. R ............. Alberta Law Reports. 
 
 A. R .................. Appeal Reports, Ontario. 
 
 ^ 
 
 B. C. R. ............... British Columbia Law Reports. 
 
 C. O. C ............... Canadian Criminal Cases. 
 
 C. L. J ............... jCanada Law Journal. 
 
 C. L. T. Occ. N ........ Canadian Law Times Occasional Notes. 
 
 C. P .................. Common Pleas Reports, Ontario. 
 
 D. R .................. Decision Reports, Quebec. 
 
 Draper ................ Draper's Reports, Ontario. 
 
 E. L. R ................ Eastern Law Reporter. 
 
 L. C. G ............... Local Courts Gazette, Ontario. 
 
 L. C. J ................ Lower Canada Jurist. 
 
 L. C. L. J ............. Lower Canada Law Journal. 
 
 L. C. R ................ Lower Canada Reports. 
 
 M. R ................. Manitoba Law Reports. 
 
 Mont. L. R ............ Montreal Law Reports. 
 
 N. B. R ............... New Brunswick Reports. 
 
 N. S. R ............... Nova Scotia Reports. 
 
 O. L. R ............... Ontario Law Reports. 
 
 O. R .................. Ontario Reports. 
 
 O. W. R ............... Ontario Weekly Reporter. 
 
 O. S .................. Upper Canada Queen's Bench Reports, old series. 
 
 P. R .................. Practice Reports, Ontario. 
 
 Q. P. R ............... Quebec Practice Reports. 
 
 Q. R. Q. B ........... Quebec Official Reports, Queen's Bench. 
 
 Q. R. S. C ............. Quebec Official Reports, Superior Court. 
 
 Sask. L. R ............ Saskatchewan Law Reports. 
 
 S. C. R ............... Supreme Court Reports, Canada. 
 
 Taylor ................ Taylor's Reports, Ontario. 
 
 Terr. L. R ............. North- West Territories Law Reports. 
 
 U. C. L. J ............. Upper Canada Law Journal. 
 
 U. C. R ............... Upper Canada Queen's Bench Reports. 
 
 W. L, R ............... Western Law Reporter. 
 
 787813
 
 ADDENDA ET CORRIGENDA 
 
 Page 80, R. v. Suck Sin, read 18 C. C. <3. for 16 C. C. C. 
 Page 80, In re Holman, read E. & G. for B. & C. 
 Page 90, Re McMicken, 21 C. C. C., should be Re McMicken, 
 20 C. C. C. 
 
 Page 168, fourth paragraph, read " backed " for " back." 
 Page 170, second last paragraph, strike out 1 East P. C. 319. 
 Page 184, Re Sarault, 9 C. C. C. 48, should be 448. 
 Page 199, R, v. McMicken, should be Re McMicken. 
 .. Page 204, R. v. De Wolfe, 9 C. C. C. 38, not 78. 
 Page 207, R. v. Parker, insert E. after 1 C. C. 
 Page 251, R. v. O'Hearn, should be R. v. O'Hearon. 
 Page 252, R. v. Fry, 67 L. J. Q. B. 712 instead of 67. 
 
 Page 259, second paragraph, strike out R. v. Ridehough, 12 
 C. C. C. 360. 
 
 Page 265, read Smith v. Moody, [1903] instead of [1893]. 
 Page 332, fifth paragraph, 4 Q. E. should be 4 Q. B. 
 Page 333, third paragraph, read 40 U. C. E. 76, not 46. 
 
 Page 343, second last paragraph, read McLellan for Mc- 
 Lennan. 
 
 Page 348, R. v. Whalen should be R. v. Wehlan. 
 Page 351, first paragraph, 1 Q. E. should be 1 Q. B. 
 Page 428, R. v. Beaudoin, 22 C. C. C. 312 should be 319.
 
 TABLE OF CONTENTS 
 
 CHAPTER I. PAGE 
 
 Introduction 1 
 
 CHAPTER II. 
 The Criminal Code and Procedure Thereunder 32 
 
 CHAPTER III. 
 Jurisdiction of Justices in General 73 
 
 CHAPTER IV. 
 Responsibility of Justices and Remedies against them 90 
 
 CHAPTER V. 
 Information and Complaint 114 
 
 CHAPTER VI. 
 Summons and Warrant of Arrest 139 
 
 CHAPTER VII. 
 Preliminary Inquiry 176 
 
 CHAPTER VIII. 
 Summary Convictions 237 
 
 CHAPTER IX. 
 Liquor License Laws and Canada Temperance Act 360 
 
 CHAPTER X. 
 
 Sunday Observance Laws, Lord's Day Acts 374 
 
 CHAPTER XI. 
 
 Summary Trial of Indictable Offences 380 
 
 CHAPTER XII. 
 
 Habeas Corpus 456 
 
 CHAPTER XIII. 
 Certiorari 487
 
 PAGE 
 
 VI TABLE OF CONTENTS. 
 
 CHAPTER XIV. 
 Evidence 538 
 
 CHAPTER XV. 
 Limitation of Prosecutions and Actions 550 
 
 CHAPTER XVI. 
 Arrests without Warrant 553 
 
 CHAPTER XVII. 
 
 Forms appended to Code 558 
 
 Appendices containing other Forms 596
 
 TABLE OF CASES. 
 
 PAGE 
 
 R. v., R. & R. 489 280 
 
 A. & N. R. v., (16 C. C. C. 
 
 381)" 48 
 
 A. B., Re, (9 C. C. C. 390) 
 
 460, 463 
 Aberdare Local Board v. Ham- 
 
 mett, (L. R. 10 Q. B. 162; 
 
 44 L. J. M. C. 49) 48 
 
 Ackers, R. v., (No. 3), (16 C. 
 
 C. C. 222) 239, 484 
 
 Ackerson, R. v., (20 C. C. C. 
 
 245) 347 
 
 Adams, R. v., (24 N. S. R. 
 
 559) 124, 281 
 
 Adams, R. v., (1 Burn's Justice, 
 
 379) 236 
 
 Addison, R. v., (17 O. R. 729) 511 
 Agnew v. Stuart, (21 TJ. C. R. 
 
 396) 90 
 
 Ah Gin, R. v., (2 B. C. R. 
 
 207) 511 
 
 Ah Wooey, R. v., (8 C. C. C. 
 
 25) 202 
 
 Ah Yin, R. v., (No. 1), (6 C. 
 
 C. C. 63) 332, 341 
 
 Aikins v. Simpson, (18 C. C. C. 
 
 99; 19 C. C. C. 325) ...105, 107 
 Akerman, R. v., (1 B. C. R., 
 
 pt. 1, 255) 281 
 
 Albertie, R. v., (3 C. C. C. 356) 376 
 Aldrich v. Humphrey, (29 O. R. 
 
 427) 99 
 
 Alexander, R. v., (17 P. R. 458) 
 
 262, 263 
 Alexander, R. v., (21 C. C. C. 
 
 473) 401, 506 
 
 Alford, R. v., (10 C. C. C. 61) 
 
 325, 493 
 Allen, R. v., (15 East 333).. 
 
 341, 489 
 Allen. R. v., (4 B. & S. 915 ; 33 
 
 L. J. M. C. 98) 515 
 
 Allerton, R. v., (22 C. C. C. 
 
 273) 109 
 
 Allingham, R. v., (21 C. C. C. 
 
 268) 494 
 
 Allington, .R. v., (1 Stra. 678) 142 
 Allinson v. General Council, 
 
 [1894] 1 Q. B. 750 81 
 
 Alward, R. v., (25 O. R. 519) 
 
 134, 245 
 Ames, R. v., (10 C. C. C. 52) 
 
 396, 469, 497 
 
 Amey v. Long, (9 East 485) . 188 
 Amyot, R. v., (11 C. C. C. 232) 111 
 Anderson and Kinrade, Re, (14 
 
 C. C. C. 448) 498 
 
 PAGE 
 Anderson, R. v., (10 C. . C. 
 
 144) 377 
 
 Anderson v. Wilson, (25 O. R. 
 
 91) 95, 120, 137 
 
 Anon, (Salk. 349) 466 
 
 Antrim, JJ., R. v., [1895] 2 Ir. 
 
 R. 603 79, 82, 499 
 
 Appleton v. Lepper, (20 C. P. 
 
 138) H9 
 
 Arbuckle v. Taylor, (3 Dow's 
 
 Hep. 160) ,....197, 198 
 
 Archamboult, Ex parte, (16 C. 
 
 C. C 433) 143 
 
 Archibald, R. v., (4 C. C. C. 
 
 159) 400 
 
 Armour v. Boswell, (6 O. S. 
 
 153, 352, 450) 249 
 
 Armstrong v. Bowes, (12 C. P. 
 
 539) 100 
 
 Arnold, R. v., (5 T. R. 353) ... 279 
 <Arnoldi, R. v., (23 O. R. 201) . 39 
 Arrowsmith, R. v., (2 Dowl. & 
 
 Dowl. 704) 102 
 
 Arrowsmith v. Le Mesurier, (2 
 
 B. & P. N. R. 211) 163 
 
 Arscott, R. v., (9 O. R. 541) .. 347 
 Arscott v. Lilley, (11 O. R. 153, 
 
 285; 14 A. R. 283) 
 
 92, 101, 347 
 
 Arton, Re, [1896] 1 Q. B. 509. 470 
 Ashcroft, R. v., (2 C. C. C. 
 
 385) 348 
 
 Ashcroft v. Tyson, (17 P. R. 
 
 42) 102 
 
 Aspinall, R. v., (2 Q. B. D. 
 
 60) 6S 
 
 Atkinson, R. v., (18 C. C. C. 
 
 279) 364, 431 
 
 Atkinson v. Jameson, (5 T. R. 
 
 25) 145 
 
 Attorney-General o'f Manitoba 
 
 v. Manitoba License Holders' 
 
 Assn., [1902] A. C. 73 4 
 
 Attorney-General of Ontario v. 
 
 Hamilton Street Ry., [1903] 
 
 A. C. 524 ; 7 C. C. C. 326 
 
 4, 38, 378 
 Attorney-General of Ontario v. 
 
 Attorney j General of Canada, 
 
 [1896] A. C. 348 4 
 
 Attorney-General v. Kwok A. 
 
 Sing, (L. R. 5 P. C. App. 
 
 201) 473 
 
 Attorney-General v. Siddon, (1 
 
 C. & J. 220) 244 
 
 Attwood, R. v., (20 O. R. 574) 220
 
 vm 
 
 TABLE OF CASES. 
 
 PAGE 
 Atwood v. Rosser, (30 C. P. 
 
 628) 105 
 
 Audet v. Doyon, (21 Q. L. R. 
 
 21) Ill 
 
 Audette v. Daniel, (21 C. C. C. 
 
 403) 38, 379 
 
 Austin, R. v., (10 C. C. C. 34) 
 
 134, 245, 275 
 
 Aves, R. v., (24 L. T. R. 64) . 152 
 Aveson v. Kinnaird, (6 East. 
 
 188) 220 
 
 Ayer, R. v., (14 C. C. C. 210) 361 
 Ayotte, R. v., (9 C. C. C. 133) . 194 
 
 Back v. Holmes, (16 Cox 268) 56 
 
 Badger, R. v., (6 El. & Bl. 137) 47 
 
 Badger, R. v., (4 Q. B. 468) .. 103 
 Bagg v. Colquhoun, [1904] 1 K. 
 
 B. 556 l&l 
 
 Bagley q. t. v. Curtis, (15 C P. 
 
 366) 105 
 
 Bailiffs of Eye, R. v., (4 B. & 
 
 Aid. 271) ?(>2 
 
 Baird, R. v., (13 C. C. C. 240) 
 
 323, 326 
 Ball v. Fraser, (18 U. C. R. 
 
 100) 105 
 
 Balser, Ex parte, (27 N. B. R. 
 
 40) 144 
 
 Bank o'f Montreal v. Gilchrist, 
 
 (6 A. R. 659) 83 
 
 Bank of N. S. W. v. Piper, (66 
 
 L. J. P. C. 76) 48 
 
 Baptiste. Paul. Re, (No. 1), (20 
 
 C. C. C. 159) 238 
 
 Baptiste, Paul. Re, (No. 2). (20 
 
 C. C. C. 161) 119, 238, 252 
 
 Barber, R. v., (23 O. L. R. 373) 501 
 Barker v. Davis (34 L. J. M. C. 
 
 140) 348 
 
 Barlow, R. v., (2 Salk. 609) .. 262 
 
 Barnes, R. v., (4 M. R. 448) . . 224 
 
 Barnes, R. v., (19 C. C. C. 465) 410 
 Barre, Re, v., (11 C. C. C. 1) 
 
 424, 480 
 
 Barrett, R. v., (1 Salk. 383) . . 124 
 Barrett's Bail, Re, (7 C. C. C. 
 
 1) 236 
 
 Barren, Re, (4 C. . C. 465) . . 146 
 Barronet, Re, (1 E. & B. 1) . . 
 
 200, 232 
 Barsalou, R. v., (4 C. C. C. 
 
 347) 50 
 
 Barsky v. Berlins, (19 C. C. C. 
 
 468) 193 
 
 Bartels, Re, (13 C. C. C. 59) 482 
 
 Barthelemy, Re, (1 E. & B. 8) 231 
 Bartholomew v. Wiseman, (56 
 
 J. P. 455) 246, 266 
 
 Barthos. R. v., (17 C. C. C. 459) 276 
 
 Barton. R. v., (13 Q. B. 389) 429 
 Barton v. Bricknell, (13 Q. B. 
 
 393) 93, 429 
 
 Basingstoke, R. v., (19 L. J. M. 
 
 C. 28) 515 
 
 PACK 
 
 Baskett, R. v., (6 C. C. C. 61) 193 
 Baston v. Carew, (5 D. & R. 
 
 558) 341 
 
 Bate, R. v., (11 Cox 686) 215 
 
 Bates, Re, (40 U. C. .R. 284) .. 285 
 Bates v. Walsh, (6 U. C. R. 
 
 498) 100 
 
 Bathews v. 'Galindo, (1 M. & 
 
 Payne 565) 543 
 
 Batson, Ex parte, (10 C. C. C. 
 
 240) 364 
 
 Batson, R. v., (12 C. C. C. 62) 
 
 81, 364 
 Battoms, R. v., (1 East 303) .. 
 
 489, 491 
 Battye v. Gresley, (8 East 319) 
 
 158, 240 
 Baxter v. Gordon, (13 O. L. R. 
 
 598) 184 
 
 Baynes, R. v., (2 Salk. 680).. 117 
 Beagan, R. v., (No. 1), (6 C. 
 
 C. C. 54) 508 
 
 Beagan, R. v., (No. 2), (36 N. 
 
 S. R. 208, 6 C. C. C. 56) .270, 300 
 Beamish, R. v., (5 C. C. C. 
 
 388) 323, 469 
 
 Beardmore, R. v., (7 C. & P. 
 
 497) 200 
 
 Beardsley, R. v., (18 C. C. C. 
 
 389) 49 
 
 Beatty v. 'Gillbanks, (9 Q. B. 
 
 D. 308, 15 Cox 138) 56 
 
 Beaudoin, R. v., (22 C. C. C. 
 
 319 223, 42S 
 
 Beaudry v. Lafontaine, (Q. R. 
 
 17 S. C. 396) 112 
 
 Beaver, R. v., (9 C. C. C. 415, 
 
 9 O. L. R. 418) 49 
 
 Becker, R. v., (20 O. R. 676) 345 
 Beckwith, R. v., (7 C. C. C. 
 
 450) 138, 265, 416 
 
 Beddingfield, R. v., (14 Cox 
 
 341) 220 
 
 Beemer, R. v., (15 O. R. 266) . 
 
 73, 125 
 Beland v. Boyce, (21 C. C. C. 
 
 421) 117 
 
 Belanger & Mulvena, (Q. R. 22 
 
 S. C. 37) 222 
 
 Bellefontaine, R. v., (22 C. C. 
 
 C. 140) 323 
 
 Belmont. R. v., (23 C.C.C. 89) 505 
 Benn, R. v., (6 T. R. 198) .. 
 
 141, 153 
 Benner, R. v., (8 C. C. C. 398) 
 
 74, 401, 447 
 Bennett, R. v., (3 O. R. 45) 
 
 105. 255. 415 
 Bennett, R. v., (5 C. C. C. 
 
 456) 508 
 
 Bennett v. Watson, (3 M. & Sel. 
 
 1) 194 
 
 Berkley, R. v., (1 Ken. 81,103) 487 
 Berrigan, R. v., (17 C. C. C. 
 
 329) 301
 
 TABLE OF CASES. 
 
 IX 
 
 PAGE 
 
 Berry, R. v., (9 P. R. 123) ... 173 
 Bertin, Ex parte, (10 C. C. C. 
 
 65) , 438, 497 
 
 Bertrand v. Angers, (Q. R. 21 
 
 S. C. 213 185 
 
 Bessela v. >Sterm, (2 C. P. D. 
 
 267) 205 
 
 Bestwick v. Bell, (1 Terr. L. R. 
 
 193) 335 
 
 Betchell, R. v., (19 C, C. C. 
 
 423) 205 
 
 Bethel, R. v., (5 Mod. 19). 467, 481 
 Bevan, R. v., (20 C. C. C. 237) 367 
 Beveridge v. Minter, (1 C. & P. 
 
 364) 542 
 
 Bibby, R. v., (6 M. R. 472) 
 
 281, 301 
 Biddinger, R. v., (22 C. C. C. 
 
 217) 109 
 
 Bigelow, R. v., (31 N. S. R. 
 
 436) 518 
 
 Bigelow, R. v., (9 C. C. C. 322) 370 
 Biggins Ex parte, (26 J. P. 
 
 244) 244 
 
 Biggins, R. v., (5 L. T. 605) . . 257 
 Bird, R. v., (5 Cox's C. C. 20) 117 
 Birnie, R. v., (1 Mood. & R. 
 
 160, 5 C. & P. 206) 94, 117 
 
 Bishop, Ex parte, (1 C. C. C. 
 
 118) 312 
 
 Bishop of Chester, R. v., (1 T. 
 
 R. 396) 108 
 
 Bishop, R. v., (1 Chit. C. L. 
 
 99, 1 Stra. 9) 233 
 
 Black, R. v., (8 C. C. C. 465) . 460 
 Blackawton, R. v., (10 B. & C. 
 
 792) 334 
 
 Blair, Re, E. G., (23 N. S. 
 
 R. 225) 480 
 
 Blais, R. v., (10 C. C. C. 354) 
 
 62, 531) 
 Blake. R. v., (6 Q. B. 126, 13 
 
 L. J. M. C. 131) 68 
 
 Blank, R. v., (10 C. C. C. 358) 367 
 Blanshard, R. v., (18 L. J. M. 
 
 'C. 110) 9f> 
 
 Blatch v. Archer. (Cowper 66) 161 
 Bloom, R. v., (15 D. L. R. 484, 
 
 22 C. C. C. 205).. 85, 240, 
 
 244, 291 
 
 Bloxam, R. v., (1 A. & E. 386) 515 
 Blucher. R. v., (7 C. C. C. 278) 476 
 Ely the, R. v., (1 C. C. <C. 284) 86 
 Ely the, R. v., (15 C. C. C. 224) 
 
 46, 51, 419 
 
 Bole, R. v., (9 C. C. C. 500) . . 236 
 Bolton, R. v., (1 Q. R. 66) .489. 490 
 Bombardier, R. v., (11 C. C. C. 
 
 216) 452 
 
 Bonaker v. Evans, (16 Q. B. 
 
 162) 143 
 
 Bond, R. v., (4 Cox 231) 213 
 
 Bond, R. v., (19 C. C. C. 96, 
 
 21 M. R. 366) 414 
 
 PAGE 
 
 Bond v. Conmee, (15 O. R. 
 
 716, 16 A. R. 398).. 92, 99, 280 
 Bonin, R. v., (20 C. C. C. 180) 401 
 Bonne vie, R. v., (10 C. C. C. 
 
 376) 431 
 
 Boomer, R. v., (13 C. C. C. 98) 
 
 253 325 
 Borron, R. v., (3 B. & Aid! 
 
 432) 103 
 
 Bosley v. Da vies, (1 Q. B. D. 
 
 84) 244 
 
 Both well v. Burnside, (4 C. C. 
 
 C. 450) 323, 345 
 
 Bouchard, R. v., (20 C. C. C. 
 
 95) 47, 184, 195, 262 
 
 Boucher, In re, (Cassells' Dig. 
 
 325) 458 
 
 Boughey, R. v., (4 T. R. 281) . 515 
 Bougie, R. v., (3 C. C. C. 487) 
 
 306, 444, 473 
 
 Boultbee, R. v., (4 A. & E. 498) 491 
 Boutilier, R. v., (8 C. C. C. 82) 
 
 124, 243 
 
 Bowack, Re, (2 B. C. R. 222) 474 
 Bowers, R. v., (6 C. C. C. 100) 475 
 Bowers, R. v., (No. 2), (6 C. 
 
 C. C. 264) 404, 445 
 
 Bowman, R. v., (2 C. C. C. 89) 
 
 344, 507 
 Bowman v. Blyth, (7 E. & B. 
 
 26) 106 
 
 Boyce, Ex parte, (24 N. B. R. 
 
 347) 118, 121, 144, 245 
 
 Boyle v. Sacker, (39 Oh. Div. 
 
 249) 151 
 
 Brackenbury, R. v., (17 Cox 
 
 628) 218 
 
 Bracey's Case, (1 Salk. 349) . . 240 
 Bradlaugh, R. v., (3 Q. B. D. 
 
 509) 281, 489 
 
 Bradley, R. v., (10 Mod. 155) 133 
 Bradley, R. v., (63 L. J. M. C. 
 
 183, 17 Cox 739) 151, 281 
 
 Bradley. R. v., (19 C. C. C. 110) 369 
 Brady, R. v., (12 O. R. 358) . . 501 
 Brady, Re, (21 C. C. C. 123) . . 276 
 Brailsford, R. v., [1905] 2 K. 
 
 B. 730 70 
 
 Brazill v. Johns, (24 O. R. 209) 113 
 Bready v. Robertson, (14 P. R. 
 
 7) 102 
 
 Breckenridge, R. v., (6 O. W. 
 R. 501, 10 O. L. R. 459. 10 C. 
 
 C. C. 180) 287, 352 
 
 Brecknockshire, R. v. JJ. of, 
 
 (42 L. J. M. C. 135 515 
 
 Breen, R. v., (8 C. C. C. 146) . . 
 
 110. 124, 243 
 Brennan v. Hatelie, (6 O. S. 
 
 308) 93 
 
 Brickhall, R. v., (33 L. J. M. 
 
 C. 156) 265 
 
 Bridges v. Hawksworth, (18 L. 
 
 T. (O.S.) 154, 21 L. J. Q. B. 
 
 75) 440
 
 TABLE OF CASES. 
 
 PAGE 
 Brimacombe, R. v., (10 C. C. C. 
 
 168) 333 
 
 Brindley, R. v., (12 C. C. C. 
 
 170) 287, 298 
 
 Brine, R. v., (8 C. C. C. 54) 
 
 186, 267 
 
 Brisbois, R. v., (13 C. C. C. 96) 482 
 Bristol, R. v., (18 Jur. 426n.) 96 
 Brittain v. Kinnaird, (1 B. & 
 
 B. 432) 90 
 
 Broad v. Perkins, (21 Q. B. D. 
 
 533) 112 
 
 Broadfoot, R. v., (17 C. C. C. 
 
 71) 257, 482 
 
 Broderip, R. v., (5B.&C. 239) 108 
 Brook, R. v., (7 C. C. C. 216) 322 
 Brooker, R. v., (22 C. C. C. 
 
 146) 376 
 
 Brookes v. Warren, (2 Bla. 
 
 Rep. 1273) 145 
 
 Brooks, R. v., (11 C. C. C. 188) 416 
 Brooks v. Mason, [1902] 2 K. 
 
 B. 743, 72 L. J. K. B. 19. .. 48 
 Broom, Re, (18 C. C. C 254) 110 
 
 Bros, R. v., (85 L. T. 581) 141 
 
 Bross v. Huber, (15 U. C. R. 
 
 625) 100 
 
 Bross v. Huber, (18 U. C. R. 
 
 282) 98, 99 
 
 Brouse, R. v., (21 C. C. C. 17) 267 
 Brown, R. v., (1 Terr. L. R. 
 
 475) 51 
 
 Brown, R. v., (24 Q. B. D. 
 
 377) 64 
 
 Brown, R. v., (16 O. R. 41).. 
 
 82 303 
 
 Brown, R. v., (23 N. S. R. 21)' 85 
 Brown, R. v., [1895] 1 K. B. 
 
 119 Ill, 179, 223, 415 
 
 Brown v. Dalby, (7 U. C. R. 
 
 162) 37 
 
 Browne, R. v., (14 C. C. C. 
 
 247) 51 
 
 Browne, R. v., (13 Q. B. 653) 96 
 Bruce, R. v., (12 C. C. C. 275) 
 
 217, 220 
 Bryne v. Arnold, (24 N. B. R. 
 
 161) 186 
 
 Bryson, R. v., (10 C. C. C. 
 
 398) 333 
 
 Buchanan, Re, (22 C. C. C. 
 
 199) 112 
 
 Buchanan, R. v., (12 M. R. 
 
 190) 297 
 
 Buckinghamshire, R. v. JJ. of, 
 
 (4 E. & B. 260) 334 
 
 Buckmaster v. Reynolds, (13 C. 
 
 B. N. S. 62) 356, 357 
 
 Budd, Ex parte, (17 C. C. C. 
 
 235) 259 
 
 Budden, R. v., (60 J. P. 160) 78 
 Bullivant v. Atty.-Gen. 'for Vic- 
 toria, [1901] A. C. 201 ... 544 
 Bullock. R. v., (cited in 1 Mood 
 
 324 (n) ) 130 
 
 PAGE 
 
 Bullock, R. v., (8 C. C. C. 8) . 253 
 Burdett, R. v., (4 B. & Aid. 95) 88 
 Burdett v. Abbot, (14 East. 
 
 157) 164 
 
 Burke, R. v., (1C. C. C. 539) 471 
 Burke, R. v., (5 C. C. C. 29) . 
 
 87, 131, 140 
 Burke, R. v. (No. 1). (7 C. C, 
 
 C. 538) 511 
 
 Burke, R. v. (No. 2), (8 C. C. 
 
 C. 14) 252 
 
 Burke, R. v., (19 C. C. C. 141) 
 
 182, 222 
 
 Burke, R. v., (24 O. R. 64) . . 229 
 Burn, R. v.,. (7 A. & E. 190) . . 102 
 Burnaby, R. v., (1 Salk. 181) 
 
 82, 264 
 Burnaby, R. v., (2 Ld. Raym. 
 
 900) 278 
 
 Burney v. Gorham, (1 C. P. 
 
 358) 93 
 
 Burns' Bail, (Re, (17 C. C. C. 
 
 292) 195, 264 
 
 Burns, R. v., (16 Cox 355) .. 56 
 Burns, R. v. (No. 1), (4 C. C. 
 
 C. 323) 419 
 
 Burns (No. 2), R. v., (4 C. C. 
 
 C. 330) 403, 447 
 
 Burr, R. v., (12 C. C. C. 103) 421 
 Burton, R. v., (3 F. & F. 772) 46 
 Burton, R. v., (32 L. T. 539, 13 
 
 Cox 71) 244 
 
 Burtress, R. v., (3 C. C. C. 
 
 536) 285, 410, 425, 450, 521 
 
 Bustard v. Schofield, (4 O. S. 
 
 11) 103 
 
 Butter, R. v., (32 C. L. J. 594) 
 
 271, 281 
 Butterfield, R. v., (15 C. C. C. 
 
 101 252, 366 
 
 Byng, R. v., (18 C. C. C. 344) 362 
 Byrne, Ex parte, (22 N. B. R. 
 
 427) 474 
 
 Cadden, R. v., (4 Terr. L. R. 
 
 119; 5 C. C. C. 45) 50 
 
 Cahoon, R. v., (17 C. C. C. 659) 362 
 Caister, R. v., (30 U. C. R. 
 
 247) 271 
 
 Callashan, R. v., (8 C. C. C. 
 
 143) 419 
 
 Cambridge, R. v., (1 Stra. 557) 141 
 Cambridgeshire, R. v. JJ. of, 
 
 (3 B. & A. 887) 517 
 
 Cambridgeshire, R. v. JJ. of, 
 
 (44 J. P. 168) 257 
 
 Cameron, R. v., (1 C. C. C. 169) 
 
 39, 233 
 Cameron, R. v., (4 C. C. C. 
 
 385) 182, 404 
 
 Campbell. Ex parte, (26 N. B. 
 
 R. 590) 149 
 
 Campbell, R. v., (2 C. C. C. 
 
 357) 61
 
 TABLE OF CASES. 
 
 XI 
 
 PAGE 
 Campbell, R. v., (10 C. C. C. 
 
 326) 225 
 
 Campbell, R. v., (20 C. C. C. 
 
 490) 373 
 
 Campbell v. Mclntosh, (1 P. B. 
 
 I. R. 423) 80 
 
 Campbell v. Walsh, (18 C. C. 
 
 C 304) 81, 98, 127, 140 
 
 Can. Pac. Ry. Co., R. v., (12 
 
 C. C. C 549) 374 
 
 Can. Pac. Ry. Co., R. v., (14 C. 
 
 C. C. 1; 8 W. L. R. 825; 1 
 
 >Alta. L. R. 341 87, 129 
 
 Canadian Prisoners' Case, (5 
 
 M. & W. 32) 460 
 
 Canadian Society v. Lauzon, (4 
 
 C. C. C. 354) 323 
 
 Cantillon, R. v., (19 O. R. 197) 271 
 Carlile, R. v., (3 B. & Aid. 
 
 161) 42 
 
 Carlin, R. v., (No. 2) (6 C. C. 
 
 C. 507; Q. R. 12 K. B. 483) 70 
 Carlisle, R. v., (7 C. C. C. 470) 477 
 Carmichael, Ex parte, (8 C. C. 
 
 C. 19) 269, 270, 404 
 
 Carmichael, Re, (1 C. L. J. 
 
 243) 461 
 
 Carmichael, Re, (10 U. C. L. 
 
 J. 325) 468 
 
 Carr, R. v., (52 L. J. M. C. 12) 170 
 Carrick-on-Suir, R. v. JJ. of, 
 
 (16 Cox 571) ...TS 151, 152 
 
 Carrigan, R. v., (17 C. L. T. 
 
 Occ. N. 224) 147 
 
 Carroll, R. v., (7 C. & P. 145) 45 
 Carroll, R. v., (14 C. C. C. 338) 499 
 Carter, R. v., (5 C. C. C. 401) 
 
 444, 474 
 Cartworth, R. v., (5 Q. B.201) 
 
 516, 517 
 
 Carvery, R. v., (11 C. C. C. 331) 44 
 Case, R. v., (No. 1), (7 C. C. 
 
 C. 204) 108 
 
 Case, R. v., (No. 2) (7 C. C. 
 
 C. 212) 108 
 
 Casson, Ex parte, (2 C. C. C. 
 
 483) 309 
 
 Catherall, R. v., (2 Stra. 900) 
 
 278 290 
 Cattley v. Loundes, (34 W. R! 
 
 139) 440 
 
 Caudle v. Seymour, (1 Q. B. 
 
 889) 94, 119, 158 
 
 Cave v. Mountain, (1 M. & G. 
 
 257, 264) 143 
 
 Cavelier, R. v., (1 C. C C. 134; 
 
 11 M. R. 333) . .145, 167, 461, 472 
 Cawston, The King v., (4 Dowl. 
 
 & Ry. 445) 505 
 
 Central Criminal 'Court, R. v. 
 
 JJ. of, (17 Q. B. D. 598) .. 440 
 Central Supply Assn., R. v., (12 
 
 C. C. C. 371) 70 
 
 Chamberlain v. King, (L. R. 6 
 
 .C. P. 474) 
 
 Chambers v. Green, (L. R. 20 
 
 Eq. 552) 
 
 Chandler, R. v., (14 East 267) 
 Chancy, R. v., (6 Dowl. 281) . 
 Chapman and City of London, 
 
 Re, (19 O. R. 33) 
 
 Chapman, R. v., (1 O. R. 582) 
 Chappie, R. v., (9 C. & P. 353) 
 Charron, R. v., (15 C. C. C. 
 
 241) 
 
 Charter v. Greame, (13 Q. B. 
 
 216) 
 
 Cheltenham Commissioners, R. 
 
 v., (1 Q. B. 467) 79, 
 
 Chetwynd, R. .v., (23 N. S. R. 
 
 332) 
 
 Chew Deb, R. v., (21 C. C. C. 
 
 20) 41, 
 
 Chicoyne, R. v., (8 C. C. C. 
 
 507) 
 
 Child, R. v., (4 C. & P. 442) . . 
 Ching, How, Re, (19 C. C. C. 
 
 176) 
 
 Ohinn v. Morris, (2 C. & P. 
 
 361) 
 
 Chipman, R. v., (1 C. C. C. 81) 
 
 Chish'olm'v.'Douiton, (22 Q. B. 
 
 D. 736) 
 
 Chisholm, R. v., (14 C. C. C. 
 
 15) 
 
 Chitnita, R. v., (22 C. C. C. 
 
 344) 137, 
 
 Choney, R. v., (17 M. R. 469; 
 
 13 C. <C. C. 289) 
 
 Christie v. Cooper, (69 L. T. 
 
 708) 
 
 Christopher v. Croll, (16 Q. B. 
 
 D. $6) 
 
 Church, Ex parte, (14 L. C. R. 
 
 318) 
 
 Citizens' Ins. Co. v. Parsons, 
 
 (7 App. Cas. 96) 
 
 City of London, R. v., (32 O. 
 
 R. 326) 
 
 City of Montreal v. Fortier, (6 
 
 C. C. C. 340) 
 
 Clark, R. v., (1 B. & B. 4737- 
 Clark, R. v., (5 C. C. C. 235) . 
 Clark, R. v., (9 C. C. C. 125) . 
 Clark, R. v., (No. 1) (12 C. C. 
 
 C. 17) 
 
 Clark, R. v., (No. 2) (12 C. C. 
 
 C. 485) 124, 
 
 Clarke and Heermans, Re, (7 
 
 U. C. R. 225) 
 
 Clarke, In re, (6 Jur. 757) . . . 
 466, 
 
 Clarke, R. v., (12 C. C. C. 300) 
 Clarke, R. v., (12 C. C. C.485) 
 Clarke, R. v., (No. 1) (14 C. 
 
 C. C. 46) 
 
 PAGE 
 98 
 
 113 
 
 147 
 492 
 
 150 
 80 
 63 
 
 378 
 277 
 490 
 193 
 260 
 
 369 
 57 
 
 506 
 
 163 
 
 280 
 
 48 
 
 51 
 
 286 
 
 219 
 
 48 
 
 330 
 
 149 
 
 4 
 
 150 
 
 375 
 
 40 
 
 543 
 
 451 
 
 308 
 243 
 249 
 
 468 
 423 
 263 
 
 71
 
 Xll 
 
 TABLE OF CASES. 
 
 PAGE 
 Clarke, R. v., (No. 2) (14 C. 
 
 C. C. 57; 9 W. L. R. 243; 
 
 1 Alta. L. R. 358) 71 
 
 Clarke, R. v., (20 C. C. C. 486) 367 
 Clarke, R. v., (19 O. R. 601) 153 
 Clarke, R. v., (20 O. R. 642) 
 
 82, 152 
 Clarke v. Rutherford, (5 C. C. 
 
 C. 13) 298 
 
 Clarkson, R. v., (17 Cox 483) 56 
 Clee and Osborne, Re, (21 L. J. 
 
 M. C. 112) 96, 244 
 
 Clemens, R. v., [1898] 1 Q. B. 
 
 556 242 
 
 Clements, R. v., (4 C. C. C. 
 
 553) 189, 474 
 
 Clennan, R. v., (8 P. R. 418) . . 279 
 Clermont v. Lagace, (2 C. C. C. 
 
 1) 297 
 
 Clewes, R. v., (4 C. & P. 221) . 541 
 Cloutier, R. v., (2 C. C. C. 43) 161 
 Cluff, R. v., (46 U. C. R. 565) 514 
 Cockshutt, R. v., (19 Cox 3) 
 
 [1898] 1 Q. B. 582 409 
 
 Code, R. v., (13 C. C. C. 372) 
 
 275, 302 
 
 Cody, R. v., (23 C. C. C. 211) 132 
 Coffon, Ex parte, (11 C. C. 
 
 C. 48) 121,144,160, 24o 
 
 Cohen, Ex parte, (8 C. C. C. 
 
 312) 470 
 
 Cohen, Re, (8 C. C. C. 251) .. 470 
 Cohen, R. v., (11 Cox 99) ... 52 
 Cohen v. Morgan, (6 D. & R. 8) 208 
 Cohen's Bail, Re, (16 C. L. T. 
 
 Occ. N. 217) 226 
 
 Colahan, R. v., (12 C. C. C. 
 
 283) 307 
 
 Colchester, R. v., (20 L. J. M. 
 
 C. 203) 516 
 
 Cole, R. v., (5 C. C. C. 330) 
 
 39, 42, 234 
 
 Cole v. Hindgon, (6 T. R. 234) 157 
 Coles v. Coles, (L. R. 1 P. & 
 
 D. 70) 546 
 
 Collette v. R., (16 C. C. C/281) 
 
 343, 347, 506 
 Collier v. Hicks. (2 B. & Ad. 
 
 663) 198 
 
 Collins, Pv. v.. (L. & C. 471; 33 
 
 L. J. M. C. 177) 64 
 
 Collins. R. v., (21 L. J. "M. (\ 
 
 73) 96 
 
 Collins,' R." V.,' (li O. R! '613) 261 
 Collins, R. v.. (6 M. R. 136) . . 471 
 Collins v. Horning, (6 C. C. C. 
 
 514) 344 
 
 Collins v. Rose, (5 M. & W. 
 
 194) 97 
 
 Colonial Bank of Australia v. 
 
 Willan. (L. R. 5 P. C. 417) 490 
 Commins, R. v.. (4 D. & R. M. 
 
 C. 94 ; 8 D. & R. 344) 
 
 177, 188, 198 
 
 PAGE 
 'Commissioners of Excise, R. v. f 
 
 (2 T. R. 385) 107 
 
 Compton, R. V., (3 C. & P. 418) 422 
 Coney, R. v., (8 Q. B. D. 534) 
 Conlin, R. v., (1 O. C. C. 41) 
 384 
 Connelly, R. v., (1 . C. c! 
 
 468; 25 O. R. 151) 
 
 Connors, R. v., (5 C. C. C. 70) 
 Connors v. Darling, (23 U. C. 
 
 R. 541) 95, 119, 
 
 Conway, R. v.. (7 C. C. C. 129) 
 Cook, Ex parte, John, (3 C. C. 
 
 C. 72) 395, 
 
 Cook, R. t., (14 C. C. C. 495; 
 
 18 O. L. R. 415) 
 
 Cook, R. v. (15 C. C. C. 40) 
 Cook, R. v. (16 C. C. C. 234) 
 285, 
 
 Cook, R. v. 
 Cook, R. v. 
 Cooke, R. v 
 
 297 
 401 
 
 540 
 
 200 
 409 
 
 413 
 
 498 
 52 
 
 (20 C. C. C. 201) 
 (22 C. C. C. 241) 
 
 506 
 367 
 217 
 192 
 
 (1 C. & P. 322) . . 
 Cooksley v. Toomaten Oota, (5 
 
 C. C. C. 26) 331 
 
 Coolen, R. v., (7 C. C. O. 522) 40o 
 Coolen (Frank), R. v., (8 C. C. 
 
 C. 157) 130, 404, 413, 423 
 
 Cooper, Re, (5 P. R. 256) . . 
 
 167, 172 
 Coote, R. v., (L. R. 4 P. C. 
 
 599) 214 
 
 Coote, R. v., (17 C. C. C. 211) 364 
 Corbett, R. v., (2 C. C. C. 499) 307 
 Corcoran, R. v., (26 C. P. 134) 57 
 Cormier, Ex parte, (12 C. C. C. 
 
 339) 145 
 
 Cormier, Ex parte, (17 C. C. C. 
 
 179) 85, 86 
 
 Cornwall v. Sanders, (3 B. & 
 
 S. 206) 351, 354 
 
 Corrigan, Ex parte, (2 C. C. C. 
 
 591) 280. 473 
 
 Corrigan, R. v., (15 C. C. C. 
 
 310) v 406 
 
 Cortis v. Kent Waterworks Co., 
 
 (7 B. & C. 314) 321 
 
 Costar v. Hetherington, (1 E. & 
 
 E. 802) 297 
 
 Cote, R. v., (8 C. C. C. 393) .. 478 
 Cotterill v. Lempriere, (24 Q. B. 
 
 639) 276 
 
 Coulombe, R. v., (20 C. C. C. 
 
 31) 52 
 
 Coulson, R. v., (24 O. R. 246; 
 
 1 C. C. C. 114) ...273, 274, 501 
 Coulson, R. v., (27 O. R. 59) 501 
 Coursey, R. v., (27 O. R. 181) 112 
 Cowan, Ex parte, (9 C. C. C. 
 
 454) 324, 493 
 
 Cox, R. v. (16 O. R. 228) 233 
 
 Cox, R. v., (14 Q. B. D. 153) 544 
 Cox v. Coleridge, (1 B. & C. 37) 198 
 Cox v. Hakes, (15 iA. C. 506) 
 
 474, 479
 
 TABLE OF CASES. 
 
 Xlll 
 
 PAGE 
 
 Cozens, R. v., (2 Doug. 426) .. 102 
 Crabb v. Longworth, (4 C. P. 
 
 283) 100 
 
 Cragg v. Lamarsh, (4 C. C. C. 
 
 246) 330, 335 
 
 Craig, R. v., (10 C. C. C. 249) 
 
 149, 154, 254 
 
 Craig, R. v., (21 TJ. C. R. 552) 285 
 Crandall, R. v., (27 O. R. 63) 
 
 506, 508 
 
 Crandell v. Nott, (30 C. P. 63) 9 
 Crawford, R. v., (20 C. C. C. 
 
 49) 185, 428, 506 
 
 Crawford, R. v., (21 C. C. C. 
 
 70) 253, 449 
 
 Crawford v. Beattie, (39 U. C. 
 
 R. 13) 95, 119. 200 
 
 Cready v. Lindsay, (3 A. C. 459) 440 
 Crepps v. Durden, (2 Cowp. 
 
 640; 1 Sm. Lead. Cas. (llth 
 
 Ed.) 651) 90 
 
 Cridland, R. v., (7 El. & Bl. 
 
 853) 82, 83, 244 
 
 Crofts, R. v., (2 ,Str. 1120) ... 244 
 Cronkhite v. Sommerville, (3 U. 
 
 C. R. 129) 99 
 
 Crooks, R. v., (19 C. C. C. 150) 410 
 Cropper v. Horton, (4 D. &. R. 
 
 M. C. 42; 8 D. & R. 167) 
 
 188, 194 
 Cross, Ex parte, (26 L. J. M. 
 
 C. 201) 466 
 
 Cross, R. v., (14 C. C. C. 171) 117 
 Cross v. Wilcox, (39 U. . R. 
 
 187) 95 
 
 Crossen, R. v., (12 M. R. 571; 
 
 3 C. C. C. 152) 386 
 
 Crossfield, R. v., (26 How. St. 
 
 Tr. 314) 214 
 
 Crouch, R. v., (1 Cox 94) .. 46 
 Crouch, R. v., (35 U. C. R.433) 
 
 330, 335 
 Crouse, Re, (No. 1), (21 C. C. 
 
 iC. 231) 485 
 
 Crouse, R. v., (No. 2), (21 C. 
 
 C. C. 243) 142, 372 
 
 Crowell, R. v., (2 C. C. C. 34) 
 
 285 433 
 Crowhurst, R. v., (2 Ld. Raym! 
 
 1363) 134 
 
 Crowhurst, R. v., (1 C. & K. 
 
 370) 221 
 
 Crowley, R. v., (16 C. C. C. 
 
 373) | 301 
 
 Crowther v. Boult, (13 Q. B. D. 
 
 680) 357, 358 
 
 Cruse, R. v., (8 C. & P. 541) . . 244 
 Cullen v. Trimble, (L. R 7 Q. 
 
 B. 416; 26 L. T. 691) 239 
 
 Cummings, R. v., (19 C. C. C. 
 
 358) 220 
 
 Cummings & Carleton, Re, (25 
 
 O. R. 607) 110 
 
 Cummins v. Moore, (.37 TJ. C. R. 
 
 130) 95 
 
 PAGE 
 
 Cundy v. Lecocq, (13 Q. B. D. 
 
 207) 48 
 
 Cm-ran, R. v., ( 22 C. C. C. 388) 
 
 341, 363, 365 
 
 Currie, R. v., (11 C. C. C. 343) 103 
 Curry, Ex parte, Thomas, (1C. 
 
 C. C. 532) 10 
 
 Curry v. R., (22 C. C. C. 191 ; 
 
 48 S. C. R. 532) 203, 549 
 
 Curtley, R. v., (27 U. C. R. 
 
 613) 61 
 
 Cyr, R. v., (12 P. R. 24) 
 
 282, 285, 444 
 
 Dagenais, R. v., (18 C. C. C. 
 
 287) 269, 311 
 
 Daigle, Ex parte, (18 C. C. C. 
 
 211) 81, 287, 308 
 
 Daignault v. Emerson, (5 C. C. 
 
 C. 534) 79 
 
 Daley, Ex parte, (27 N. B. R. 
 
 129) 498 
 
 Daman, R. v., (1 Chit. 155) . . 287 
 Damboise, Ex parte, (16 C. C. 
 
 C. 292) 362, 494 
 
 D'Aoust, R. v., (5 C. C. C. 407) 
 
 541, 548 
 
 Darracq, Re, (19 C. C. C. 483) 470 
 Darragh, g.t. v. Paterson, (25 
 
 C. P. 529) 105 
 
 Dart, R. v., (14 Cox C. C. 143) 47 
 Darton, R. v., Inhabitants of, 
 
 (12 A. & E. 78) 260 
 
 Daubney v. Cooper, (10 B. & 
 
 C. 277) 198 
 
 Daun, R. v., (11 C. C. . 244) 507 
 Davey, R. v., (22 C. C. C. 185) 490 
 Davidson, R. v., (45 U. C. R. 
 
 91) 82, 242 
 
 Davidson, R. v., (8 M. R. 325) 276 
 Davidson, R. v., (6 C. C. C. 
 
 117) 512 
 
 Davidson v. Garrett, (5 C. C. 
 
 C. 200) 174 
 
 Davies, R. v., (23 C. C. C. 33) 489 
 Davies, R. v., (5 T. R. 626). 489 
 Davis, R. v., (14 Cox C. C.563) 46 
 Davis, R. v., (20 C. C. C. 293) 
 
 185, 238, 252 
 
 Davis, R. v., (6 T. R. 178) . . 268 
 Davis, R. v., (5 B. & A. 551) 287 
 Davis, R. v., (22 C. C. C. 34) 410 
 Davis v. Capper, (10 B. & C. 
 
 28) 92, 123, 197, 198 
 
 Davitt, R. v., (7 C. C. C. 514) 333 
 Davy, R. v., (4 C. C. C. 28) .. 84 
 Davy, R. v., [1899] 2 Q. B. 
 
 307; 80 L. T. 798 356 
 
 Dawkins v. Poulet, (L. R. 5 Q. 
 
 B. 94) 90 
 
 Day, R. v., (20 O. R. 209) 
 
 219, 220 
 Day v. King, (5 A. & E. 359) 
 
 289, 310
 
 XIV 
 
 TABLE OF CASES. 
 
 Dayman, R. v., (7 E. & B. 672) 
 96, 110, 
 
 Dayrell, R. v., (1 B. & C. 485) 
 
 Deakin, R. v., (19 C. C. C. 62) 
 
 203, 
 
 Defries, R. v., (1 C. C. C. 207; 
 
 25 O. R. 645) 69, 
 
 Began, R. v., (14 C. C. C. 148) 
 
 260, 
 
 Delaney v. McNabb, (21 C. P. 
 
 563) 96, 107, 
 
 Delisle, R. v., (5 C. C. C. 210) 
 Demetrio, R. v., (20 C. C. C. 
 
 316) 275, 395, 
 
 Dempsey v. Dougherty, (7 U. 
 
 C. R. 313) 
 
 Denault v. Robida, (8 C. C. C. 
 
 501) 259. 324, 496, 
 
 Denbighshire, R. v. JJ. of, (9 
 
 Dowl. P. C. 509) 
 
 Denny v. Thwaites, (2 Ex. D. 
 
 21) 
 
 Deny, et al., R. v., (20 L. J. M. 
 
 C. 189) 268. 
 
 Derbyshire, R. v. JJ. of, (11 W. 
 
 R. 780) 
 
 DevereU, R. v., (3 E. & B. 372) 
 Dewar, Ex parte, (15 C. C. C. 
 
 273) 
 
 Dewhurst, R. v., (5 B. & Ad. 
 
 405) 
 
 De Wolfe, R. v., (9 C. C. C. 38) 
 
 65, 
 Deybell's Case, (4 B. & Aid. 
 
 243) 
 
 Dias, R. v., (1 C. C. C. 534) . 
 Dibblee, R. v., (32 N. B. R. 242) 
 Dibley, R. v., (2 C. & K. 818) 
 Dick, R. v., (22 C. C. C. 188) 
 Dickenson v. Brown, (Peake's 
 
 Rep. 307) 
 
 Dickenson v. Fletcher, (L. R. 
 
 9 C. P. 1, 43 L. J. M. C. 25) 
 
 48, 
 
 Dickey, Re (No. 1), (8 C. C. C. 
 
 318 
 Dickey, Re ( No. ' 2 ) ," ( 8 ' C. ' C. 
 
 C. 321) 
 
 Dickson v. Crabb, (24 U. C. R. 
 
 494) 
 
 Dimes v. Grand Junction Canal 
 
 Co., (3 H. of L. 759) 
 
 Dion v. Champagne, (18 C. C. 
 
 C. 489) 
 
 Dixon, Ex parte, (7 C. C. C. 
 
 336) 
 
 Dixon, R. v. (2 C. C. C. 589) 
 Dixon, R. v. (No. 2), (3 C. C. 
 
 C. 220) 
 
 Dixon v. Wills, (25 Q. B. D. 
 
 249) 
 
 Dodd's Case, (2 De G. & J. 
 
 510) 
 
 Doe, Re John, (3 C. C. C. 370) 
 
 PAuK 
 
 162 
 
 286 
 
 470 
 
 470 
 
 95 
 
 77 
 
 496 
 
 278 
 50 
 
 545 
 75 
 
 485 
 318 
 
 PAGE 
 
 Doherty, Ex parte, (1 C. C. C. 
 
 84) 151, 155, 255 
 
 Doherty, Ex parte, (3 C. C. C. 
 
 310) 209, 259 
 
 Doherty, Ex parte, (5 C. C. 
 
 C. 94) 162, 474 
 
 Doherty, Ex parte, (25 N. B. R. 
 
 38) 331, 332, 333 
 
 Doherty, R. v., (16 Cox C. C. 
 
 306) 45 
 
 Doherty, R. v. (3 C. C. C. 505) 
 
 251, 300 
 Doliver Mining Co., R. v., (10 
 
 O. C. C. 405) 325, 339 
 
 Dominion Athletic Club, R. v. 
 
 (15 C. C. C. 105) 353 
 
 Donaldson v. Haley, (13 C. P. 
 
 87) 100 
 
 Donnelly, Re, (20 C. P. 165) . . 
 
 129, 274 
 Donohue v. Recorders' Court, 
 
 (18 C. C. C. 182) 262 
 
 Donovan, Ex parte, (32 N. B. 
 
 R. 374, 3 C. C. C. 286) 146 
 
 Dowd, R. v., (4 C. C. C. 170) 61 
 Dowling, R. v., (17 O. R. 698) 
 
 73, 125 
 
 Downey, R. v., (7 Q. B. 281) . . 483 
 Downshire, R. v. (6 N. & M. 
 
 105) 289 
 
 Doyle, R. v., (12 C. C. C. 69) 319 
 Doyle v. Bell, (11 A. R. 326) 37 
 Drake v. Preston, (34 U. C. R. 
 
 257) 105 
 
 Drummond, R. v. (11 Mod. 
 
 200) 320 
 
 Drury. R. v., (3 C. & K. 193, 
 
 18 L. J. M. C. 189) 40 
 
 Dublin, JJ.. R. v., [1894] 2 Q. 
 
 B. Ir. 527 77 
 
 Dubuc, R. v., (15 C. C. C. 353) 
 
 327, 373 
 
 Dubuc, R. v., (22 C. C. C. 426) 452 
 Duclos, Re, (Q. R. 32 S. C. 154, 
 
 12 C. C. C. 278) 47 
 
 Ducros v. Lambourne, [1907] 1 
 
 K. B. 40, 21 Cox 311 62 
 
 Dudley Gas Co. v. Warmington, 
 
 (50 L. J. M. C. 69, 44 L. T. 
 
 475) 244 
 
 Duering, R. v., (5 C. C. C. 135) 87 
 Duffy, Ex parte, (8 C. C. C. 
 
 277) 178, 198 
 
 Dufresne, R. v., (19 C. C. C. 
 
 414) 120 
 
 Duggan, R. v., (21 C. L. T. 
 
 Occ. N. 35) 86 
 
 Duke of Marlborough, Ex parte, 
 
 (5 Q. B. 955) 102 
 
 Dungey, R. v. (5 C. C. C. 38) . . 
 
 180, 182, 198 
 Dunlap, R. v., (22 C. C. C. 
 
 245) 505 
 
 Dunn, R. v., (12 A. & E. 599) 
 
 316, 319, 466
 
 TABLE OF CASES. 
 
 XV 
 
 PAGE 
 Durand v. Forrester, (15 C. C. 
 
 C. 125; 18 M. R. 444) 184 
 
 Durlin, R. v., (19 C. C. C. 
 
 392) 347 
 
 Durocher, R. v., C21 C. O. C. 
 
 382) 42 
 
 Dyer, R. v., (1 Salk. 381) 141 
 
 Dyer, R. v., (6 Mod. 41) 153 
 
 Ead v. R., (40 S. C. R. 272.. 417 
 Earley, R. v. (No. 1), (10 C. 
 
 C. C. 280) 352 
 
 Earley, R. v., (No. 2), (10 C. 
 
 C. C. 336) 352 
 
 Earley, R. v., (No. 3), (14 C. 
 
 C. C. 10) 393 
 
 Eastern Counties R. W. Co., 
 
 R. v., (10 A. & E. 531).... 109 
 Eastman v. Reid, (6 U. C. R. 
 
 611) 94 
 
 Eaton. T. Co., R. v., (2 C. C. 
 
 C. 252) 150 
 
 Eaton, R. v., (2 T. R. 89) . . 491 
 Edelston, R. v., (17 C. C. C. 
 
 155) 329, 345 
 
 Edwards, Ex parte, (16 C. C. 
 
 C. 522) 406 
 
 Edwards, R. v., (5 B. & Ad. 
 
 407) 321 
 
 Edwards, R. v., (2 C. C. C. 
 
 96) 117, 124. 243. 423 
 
 Edwards, R. v., (13 C. C. C. 
 
 202) 420, 548 
 
 Edwards, R. v., (1 East. 279) . 129 
 Edwards, R. v., (4 W. R. 287) 242 
 Eli, R. v., (10 O. R. 727) . .150, 
 
 252, 494 
 Eliasoph, R. v., (16 C. C. C. 
 
 131) 207 
 
 Elliott, R. v., (3 C. C. C. 95) 
 
 218 219 
 Elliott, R. v., (9 C. C. C. 505 ; 
 
 9 O. L. R. 648) 70 
 
 Elliott, R. v., (12 O. R. 524) . . 
 
 301, 343 
 
 Ellis, R. v., (6 B. & C. 145) . . 541 
 Elrington, R. v., (31 L. J. M. 
 
 C. 14) 297 
 
 Emery v. Nolloth, [1903] 2 K. 
 
 B. 269, 72 L .J. K. B. 620 48 
 Emmerson, Em parte, (1 C. C. 
 
 C. 156, 33 N. B. R. 425) .. 518 
 Entrehman, R. v., (Car. & M. 
 
 248) 202 
 
 Erdheim, R. v., [1896] 2 Q. B. 
 
 260 213 
 
 Erickson, Ex parte, (31 N. B. 
 
 R. 296 255 
 
 Esdaile, R. v., (1 F. & F. 213) 69 
 Esop, R. v., (7 C. & P. 456) . . 53 
 Esser, R. v., (2 East. P. C. 
 
 1125) 88 
 
 Essery, R. v., (7 P. R. 290) . . 330 
 
 PAGE 
 
 Ettinger, R. v., (3 C. C. C. 
 
 387).... 74, 85, 115, 123, 125, 
 
 167, 246 
 Evans, Ex parte, [1894] A. C. 
 
 16 86 
 
 Evans, R. v., (19 L. J. M. C. 
 
 151) 147 
 
 Evans, R. v., (62 L. T. 570) ... 195 
 Evans v. Rees, (12 A. & E. 55) 191 
 Eveleth, R. v., (5 Allen N. B. 
 
 R. 201) 440 
 
 Excell, R. v., (20 O. R. 633) . . 301 
 Exeter, Mayor of, v. Heamon, 
 
 (37 L. T. 535) 185 
 
 Fallen, R. v., (32 L. J. M. C. 
 
 66) 63 
 
 Fanning v. Gough, (18 C. C. C. 
 
 66) 135, 175 
 
 Farmer, R. v., [1892] 1 Q. B. 
 
 637 146 
 
 Farquar v. Robertson, (13 P. 
 
 R. 156) 69 
 
 Farquharson v. King, [1902] 
 
 A. C. 325 440 
 
 Farquharson v. Morgan, [1894] 
 
 1 Q. B. 552 112 
 
 Farrar, R. v., (1 Terr. L. R. 
 
 308) 134 
 
 Farrell, R. v., (16 C. C. C. 
 
 419) 369 
 
 Farrell, R. v., (12 C. C. C. 
 
 524) 252, 263, 424, 482 
 
 Farwell, R. v., (2 Str. 1209) . . 491 
 Fawcett v. Fowlis, (7 B. & C. 
 
 394) 90 
 
 Fearman, R. v., (22 O. R. 456) 
 
 74, 125 
 Feinberg, Ex parte, (4 C. C. C. 
 
 270) 222, 470 
 
 Fellowes, R. v., (19 U. C. R. 
 
 48, 58) 69 
 
 Fennell, R. v.. (7-Q. B. D. 147) 220 
 Fentiman, Ex parte, (2 A. & 
 
 E. 127) 102 
 
 Ferguson. Ex parte, (17 C. C. 
 
 C. 437) 539 
 
 Ferguson, R. v., (11 C. C. C. 
 
 277) 352 
 
 Ferguson, R. v., (19 C. C. C. 
 
 31) 499 
 
 Ferguson v. Kinnoull, (9 Cl. & 
 
 Fin. 251) 74 
 
 Ferrall, R. v., (20 L. J. M. C. 
 
 39) . . '. 290 
 
 Fielding, R. v., (2 Burr. 720) 102 
 Finkle, R. v., (15 C. P. 453) . < 220 
 Finmore R. v., (8 T. R. 409) . . 236 
 Fisher, Re, (9 C. C. C. 453; 41 
 
 C. L. J. 622) 377 
 
 Fisher and Village of Carman, 
 
 Re, (15 M. R. 475 ; 9 C. C. C. 
 
 451) 124, 275 
 
 Fitzgerald, R. v., (1 C. C. C. 
 
 420; 29 O. R. 203) 223, 288
 
 XVI 
 
 TABLE OF CASES. 
 
 PAGE 
 Fitzgerald, R. v., (19 C. C. C. 
 
 39) 506 
 
 Fitzgerald, R. v., (3 IT. C. R. 
 
 (O. S.) 300) 231 
 
 Fitzpatriok, Ex parte, (5 C. C. 
 
 C. 191) 307, 469 
 
 Flanagan, Ex parte, (5 C. C. C. 
 
 82) 18, 38, 41, 452 
 
 Flannagan, Ex parte, (2 O. C. 
 
 C. 513 ; 34 N. B. R. 326) . . 
 
 76, 251, 269 
 
 Fleming, R. v., (27 O. R. 122) 77 
 Fleming. Ex parte, (14 C. L. T. 
 
 Occ. N. 106) 146 
 
 Fletcher, R. v., (L. R. 1 C. C. 
 
 R. 320J 119 
 
 Fletcher v. Cal thorp, (6 Q. B. 
 
 880) 273 
 
 Flick v. Brisbin, (26 O. R. 423) 296 
 Flintshire, R. v., (10 Jur. 475) 290 
 Flounders, Re, (4 B. & A. 865) 516 
 Flower v. Allen, (2 H. & C. 
 
 688) 146 
 
 Flynn, R. v., (9 C. C. C. 550) 395 
 Foisard's Case, (18 Q. B. D. 
 
 314) 440 
 
 Follansby and McArthur, Re, 
 
 (Man. R. Temp. Wood. 4) . . 289 
 Forrest, R. v., (3 T. R. 38) .. 240 
 Forsythe v. Goden, (32 C. L. J. 
 
 288, 499) 163 
 
 Fortier, Ex parte, (6 C. C. C. 
 
 191 ; Q. R. 13 K. B. 151) .39, 232 
 Foster, R. v., (6 C. & P. 325) 220 
 Foster, R. v. (7 C. C. C. 46) 512 
 
 Foster's Case, (5 Rep. 59) 170 
 
 Foster's Case, (11 Rep. 59) .. 240 
 Foulkes, Ex parte, (15 M. & 
 
 W. 612) 313 
 
 Fournier v. Atty.-Gen., (17 C. 
 
 C. C. 108) 88 
 
 Fowle, R. v., (4 C. & P. 592) 68 
 Fox, R. v., (7 C. C. C. 457) .. 
 
 38, 416 
 France, R. v., (1 C. C. C. 321) 
 
 118, 135, 184, 394, 395, 416 
 Frances, R. v., (4 Cox 57) .. 46 
 Franey, R. v., (16 C. C. C. 441) 147 
 Frank, R. v., (16 C. C. C. 237) 205 
 Fraser, R. v., (20 C. C. C. 167) 
 
 367, 477 
 Fraser v. McKenzie, (28 U. C. 
 
 R. 255) 9 
 
 Frawley, R. v., (1 C. C. C. 253; 
 
 25 O. R. 431) 70 
 
 Freeman v. Reid, (9 C. B. N. 
 
 S. 301) 346 
 
 Frejd, R. v., (18 C. C. C. 110) 481 
 French, R. v., (13 O. R. 80).. 261 
 Friel v. Ferguson, (15 C. P. 
 
 583) 98, 120, 159 
 
 Frizell, R. v., (22 C. C. C. 214) 
 
 308. 361 
 Fry, R. v., (19 Cox 135; 67 
 
 059 253 
 
 L. J. Q. B. 712) 
 
 PAGE 
 
 Fry v. Moore, (5 Q. B. D. 395) 151 
 Fuerst, R. v., (22 C. C. C. 183) 
 
 410, 482 
 Fullarton v. Switzer, (13 U. C. 
 
 R. 575) 319 
 
 Fuller, R. v., (2 D. & L. 98) 242 
 Fuller, R. v., (1 Ld. Raym. 509) 
 
 117. 122, 134 
 
 Fulton, R. v., (5 C. C. C. 36) 416 
 Fursey. R. v., (1883) St. Tr. 
 (X.S.) 543; 6 G. j& P. 81 .. 
 
 56, 57 
 
 Gatre, R. v. (No. 1), (13 C. C. 
 
 C. 415) 71 
 
 Gage, R. v. (No. 2), (13 C. C. 
 
 . 428: 7 W. L. R. 564; 18 
 
 M. R. 175) 71 
 
 Galbraith, R. v., (6 M. R. 14) 495 
 Gallagher, Ex parte, (14 C. C. 
 
 C. 38) 81, 259 
 
 Gallagher, R. v., (7 Ir. C. L. R. 
 
 19) 233 
 
 Gallagher, R. v., (18 C. C. C. 
 
 347) 494 
 
 Galloway, R. v., (15 C. C. C. 
 
 317 ; 11 W. T,. R. 673) 486 
 
 Garbutt, 7?r, (21 O. R. 179) .. 479 
 Garland. Ex parte, (8 C. C. C. 
 
 385) 145, 167, 226 
 
 Garner v. Coleman, (19 C. P. 
 
 106) 90 
 
 Gates, Re, (8 C. C. C. 249) 470 
 Gaul v. Ellice, (6 C. C. C. 15) 
 
 161, 300 
 Gavin. R. v., (1 C. C. C. 59; 
 
 30 N. S. R. 162) . .287, 298, 425 
 Gay v. Mathews, (33 L. J. M. 
 
 C. 14) 345 
 
 Gaynor and Greene (No. 3), 
 
 Re, (9 C. C. C. 205) 70 
 
 Gaynor and Greene, Re, (No. 
 
 8), (9 C. C. C. 496) 468 
 
 Gaynor and Greene (No. 9), R. 
 
 v., (9 C. C. C. 542) 475 
 
 Geering, R. v., (18 L. J. M. 
 
 C. 215) 541 
 
 Gehrke, R. v., (11 C. C. C. 
 
 109) 348, 497 
 
 Geiser, R. v., (5 C. C. C. 154) 355 
 Geiser. R. v., (No. 2), (7 C. C. 
 
 C. 172) 511 
 
 Gelan v. Hall, (27 L. J. M. C. 
 
 78) 92 
 
 Genner v. Sparkles, (1 Salk. 
 
 79) 162 
 
 Genz, R. v., (22 C. C. C. 110) 372 
 
 Geswood, Re, (2 E. & B. 952) . 273 
 
 Gibbs, R. v., (1 Str. 497)... 278 
 Giberson, Ex parte, (4 C. C. C. 
 
 537) H9, 159 
 
 Giberson, Ex parte (No. 1), (16 
 
 C. C. C. 66) 291 
 
 Giberson, Ex parte, (18 C. C. 
 
 C. 355) 252, 262, 263, 490
 
 TABLE OF CASES. 
 
 XV11 
 
 PAGE 
 Gibson, R. v., (2 C. C. C. 302) 
 
 274, 404, 428, 472, 521 
 Gibson, R. v., (3 C. C. C. 451) 
 
 10 180, 227 
 
 Gibson, R. v., (16 O. R. 704) 70 
 Gibson, R. v., (18 Q. B. D. 
 
 537) 410 
 
 Gidney v. Dibblee, (15 N. B. 
 
 R. 388) 101 
 
 Gilbert, Ex parte, (10 C. C. C. 
 
 38) 109 
 
 Gilbert v. The King, (38 S. C. 
 
 R. 284) 220 
 
 Gill, R. v., (2 B. & Aid. 204) . . 68 
 Gill, R. v., (14 C. C. C. 294) 411 
 Gillespie, R. v., (16 P. R. 155) 342 
 Gillespie, R. v., (1 C. C. C. 
 
 551) 471 
 
 Gillespie, R. v., (No. 2), (2 C. 
 
 C. C. 309) 88 
 
 Gillespie v. Wright, (14 U. C. 
 
 R. 52) 99, 100 
 
 Gillis. R. v., (11 Cox 69) 215 
 
 Gillyard, R. v., (12 Q. B. 527) 
 
 487, 488 
 
 Gilmore, R. v., (7 C. C. C. 219) 199 
 Giovanetti, R. v., (5 C. C. C. 
 
 157) 74, 447 
 
 Girdwood, R. v., (2 East. P. C. 
 
 1116) 88 
 
 Glamorganshire, R. v. JJ. of, 
 
 (5 T. R. 279) 516 
 
 Gloucester Board of Health v. 
 
 Chandler, (32 L. J. M. C. 66; 
 
 7 L. T. 722) 354 
 
 Golden, R. v., (10 C. C. C. 
 
 278) 212 
 
 Golding, R. v., (35 N. B. R. 
 
 385) 148 
 
 Goldsberry, Ex parte, (10 C. C. 
 
 C. 392) 476 
 
 Goldsberry, R. v., (11 C. C. C. 
 
 159) 481 
 
 Gompertz, R. v., (9 Q. B. 824) 68 
 Goodenough, R. v., (2 A. & B. 
 
 463) 516 
 
 Goodfellow, R. v., (10 C. C. C. 
 
 425) 70 
 
 Goodman, R. v., (2 O. R. 468) 472 
 Goodrich, R. v. (19 L. J. Q. B. 
 
 413) 147 
 
 Gordon, R. v., (16 O. R. 64) .. 75 
 Gordon v. Denison, (24 O. R. 
 
 576; 22 A. R. 315) . .90, 123, 190 
 Gorman, Ex parte, (4 C. C. C. 
 
 305) 309 
 
 Gosselin v. The King, (7 C. C. 
 
 C. 139; 33 S. C. R. 255)... 544 
 Gottfriedson, R. v., (10 C. C. 
 
 C. 239) 232 
 
 Gonilliould, R. v., (7 C. C. C. 
 
 432) 436 
 
 'Goulet, R. v., (12 C. C. C. 365) 
 
 260, 424, 498 
 Goulet, R. v., (20 C. C. C. 191) 195 
 
 C.C.P. B-f 
 
 PAGE 
 
 Governor of Holloway Prison, 
 
 R. v., (71 L. J. K. B. 935) . . 470 
 Gow, R. v., (11 C. C. C. 81) . 267 
 Grady, R. v., (7 C. & P. 650) . 208 
 Graf, R. v., (15 C. C. C. 193) . . 412 
 Graham, R. v., (1 C. C. C. 405) 349 
 Graham, R. v., (2 C. C. C. 388) 
 
 61, 173 
 Graham, R. v., (17 C. C. C. 
 
 264) 96 
 
 Graham v. McArthur (25 U. C. 
 
 R. 478) 95 
 
 Grant, R. v., (19 L. J. M. C. 
 
 59) 490 
 
 Grant v, McFadden, (11 C. P. 
 
 122) 100 
 
 Grant v. Moser, (5 M. & G. 
 
 123) 54 
 
 Gratton, R. v., (17 C. C. C. 
 
 324) 269, 270 
 
 Gravelle, R. v., (10 O. R. 735) 279 
 Graves, R. v., (21 O. L. R. 
 
 330) 105 
 
 Graves. R. v., (No. 1), (16 C. 
 
 C. C. 150) 361, 483, 506 
 
 Graves, R. v., (No. 2), (16 C. 
 
 C. C. 318) 364 
 
 Gray, R. v., (5 C. C. C. 24) .. 
 
 338, 339 
 
 Gray v. Commissioner of Cus- 
 toms, (48 J. P. 343) 120 
 
 Great Mario w, R. v., (2 East. 
 
 244) 85 
 
 Great West Laundry Co., R. v., 
 
 (3 C. C. C. 514) 150 
 
 Green, Ex parte, (35 N. B R. 
 
 137) 5 
 
 Green, R. v., (20 L. J. M. C. 
 
 168) 290 
 
 Green, R. v., (12 P. R. 373). 507 
 Green, R. v., (22 C. C. C. 155) 330 
 Greene & Gaynor, Ex parte (No. 
 
 1), (7 C. C. C. 375) 478 
 
 Greenough v. Eccles, (5 C. B. 
 
 N. S. 786) 546 
 
 Gregg, R. v., (13 D. L. R. 770) 340 
 Grey, Ex parte, (12 C. C. C. 
 
 481) 301 
 
 Grieves, Ex parte, (29 N. B. R. 
 
 543) 256 
 
 Griffin v. Coleman, (4 H. & N. 
 
 256) 163 
 
 Griffiths, R. v., (16 Cox 46).. 198 
 Griffith v. Taylor, (2 C. P. D. 
 
 194) 98 
 
 Grimes v. Miller, (23 A. R. 
 
 764) 120 
 
 Grimmer, R. v., (25 N. B. R. 
 
 424) .-. 80 
 
 Grinder, R. v., (10 C. C. C. 
 
 333) 212, 546 
 
 Grindley, R. v., (1 Russ. on 
 
 Crimes 88) 45 
 
 Groulx, R. v., (Q. R. 18 K. B. 
 
 118; 15 C. C. C. 20) 41
 
 XV111 
 
 TABLE OF CASES. 
 
 PAGE 
 Grundy, Ex parte, (12 C. C. C. 
 
 65) 121. 155, 245 
 
 Guerin, Re, (16 Cox 596; 58 
 L. J. M. C. 42) ....86, 182, 
 
 196, 222, 251 
 Guertin, R. v., (15 C. C. C. 
 
 251) 122, 361 
 
 Gunn, R. v., (10 C. C. C. 148) 370 
 
 Haacke v. Adamson, (14 C. P. 
 
 201) 92, 100 
 
 Hadland, Re, (1 Dowl. & Dowl. 
 
 835) 194 
 
 Hadwen. R. v., [1902] 1 K. B. 
 
 882 541 
 
 Hain, R. v. ( (12 T. L. R. 323) 82 
 Halifax Electric Tramway Co., 
 
 R. v., (1 C. C. C. 424) 378 
 
 Hall, R. v., (12 C. C. C. 492) 233 
 Hall, R. v., (12 P. R. 142).. 
 
 262, 263 
 Hall v. Pittingell, (18 C. C. C. 
 
 196) 294 
 
 Hall v. Roche. (8 T. R. 188) 162 
 Hallett v. Wilmot, (40 IT. C. 
 
 R. 263) 95 
 
 Hamilton. R. v., (2 C. C. 0. 
 
 390; 12 M. R. 354) 207 
 
 Hamilton, R. v., (3 C. C. C. 1) 236 
 Hamilton, R. v., (4 C. C. C. 
 
 251) 65 
 
 Hamilton v. Massie, (18 O. R. 
 
 585) 39, 163 
 
 Hamilton T. Walker, [1892] 2 
 
 Q. B. 25 252. 253 
 
 Hamlink, R. v., (17 C. C. C. 
 
 162) 345 
 
 Hamlink, R. v., (19 C. C. C. 
 
 493) 113 
 
 Hammond, R. v., (1 C. C. C. 
 
 373: 29 O R. 211) 50. 173 
 
 Hampshire, R. v. JJ. of, (33 
 
 L. J. Q. B. 176) 346 
 
 Hamren, R. v., (7 C. C. C. 188) 376 
 Hancock v. Somes, (1 E. & E. 
 
 795) 297 
 
 Handcock v. Baker, (2 B. & P. 
 
 260) 165 
 
 Haney v. Mead, Re. (34 C. I,. 
 
 J. 330) 174 
 
 Hannay, R. v., (11 C. C. C. 23) 
 
 182, 222 
 Hanson, R. v., (4 B. & Aid. 
 
 521) 488 
 
 Hardy v. Ryle, (9 B. & C. 603) 97 
 Hargreaves v. Diddams, (44 I,. 
 
 J. M. C. 178) 83 
 
 Harkness, R. v., (No. 1) (10 
 
 C. C. C. 193) 61 
 
 Harley, R. v., (4 C. & P. 369) 59 
 Harmer, R. v., (2 Cox 487). 221 
 Harper, Re. (23 O. R. 63) . . 474 
 Harper r. Carr, (7 T. R. 270) 153 
 ITarran, R. v., (20 C. C. C. 72) 
 
 83, 242 
 
 PAGE 
 Harris, Ex parte, (14 C. C. C. 
 
 109; 4 W. L. R. 530) 499 
 
 Harris, Re, Edwin G., (26 N. 
 
 S. R. 508) 485 
 
 Harris, R. v., (1 Moody C. C. 
 
 338) 213 
 
 Harris, R. v., (13 C. C. C. 393) 276 
 Harris, R. v., (4 T. R. 205). 290 
 Harris, R. v.. (18 C. C. C. 392) 
 
 410, 415 
 Harrison, R. v., (15 O. L. R. 
 
 231) 521 
 
 Harrup v. Bayley, (6 E. & B. 
 
 218; 25 L. J. M. C. 107) 
 
 321, 322 
 
 Hart, R. T., (2 B. C. R. 264) . 80 
 Hart, R. v., (45 U. C. R. 1) . . 223 
 Hartlen, R. v., (2 C. C. C. 12) 43 
 Hartley, R. v., (31 L. J. M. C. 
 
 232) 96 
 
 Hartley, R. v., (20 O. R. 481) 
 
 271, 501 
 Harvey of Comb's Case, (10 
 
 Mod. 334) 233 
 
 Harwood v. Williamson, (14 C. 
 
 C. C. 76) 348 
 
 Hatch, R. v., (16 C. C. C. 196) 538 
 Hatch v. Taylor, (14 N. B. R. 
 
 39) 98. 99 
 
 Hatton's Case, (2 Salk. 477). 24o 
 Haverstock, R. v., (5 C. C. C. 
 
 113) 43S 
 
 Hawbolt, R. v., (4 C. C. C.229) 344 
 Hawes, R. v., (6 C. C. C. 238) 404 
 Hawkins, Re, (3 P. R. 239) .. 459 
 Hayes, In re, (21 C. L. T. Occ. 
 
 N. 87) 485 
 
 Haylock v. Sparke, (22 L. J. 
 
 M. C. 67) 100 
 
 Haynes. R. v., (6 C. C. C. 357) 508 
 Hayward, R. v., (6 C. C. C. 399) 443 
 Hazel wood, R. v., (20 C. C. C. 
 
 488) 482 
 
 Hazen, R. v., (20 A. R. 633) 
 
 135. 153, 245, 261, 271 
 Hearn, R. v., (1 C. & M. 109) 215 
 Hebert, Ex parte, (4 C. C. C. 
 
 153) 76, 251, 494 
 
 Hebert, Ex parte. (15 C. C. C. 
 
 165) 124, 368 
 
 Hebert v. Hebert, (16 C. C. C. 
 
 199) 298 
 
 Heckman, R. v., (5 C. C. C. 
 
 242) 474 
 
 Heffernan, R. v., (13 O. R.616) 
 
 153. 252, 261 
 
 Heming, R. v., (5 B. & Ad. 666) 102 
 Hendershott, R. v., (26 O. R. 
 
 678) 541 
 
 Henderson v. Preston, (21 Q. 
 
 B. D. 362) 313 
 
 Hendrie. R. v., (10 C. C. C. 298) 61 
 Hennesy v. Ossier, (8 IT. C. L. 
 
 J. 299) 2RO 
 
 Henry, R. v., (16 C. C. C. 73) 353
 
 TABLE OF CASES. 
 
 XIX 
 
 PAGE 
 Hereford, JJ., R. v., (2 D. & 
 
 L. 500) 78 
 
 Hereford, R. v., (3 E. & B. 115) 173 
 Herrell, R. v., (1 C. C. C. 510; 
 
 12 M. R. 198).. 81, 269, 431, 501 
 Herrell, R. v., (3 C. C. C. 15; 
 
 12 M. R. 522) 493 
 
 Herrington, R. v., (12 W. R. 
 
 420) 297 
 
 Hereford, JJ., R. v., (6 Q. B. 
 
 753) 78 
 
 Hertfordshire, JJ., R. v. (4 B. 
 
 & Ad. 561) 341 
 
 Hespeler v. Shaw, (16 U. C. R. 
 
 104) 489 
 
 Heustis, R. v., (2 N. S. R. 101) 102 
 Hewes, R. v., (3 A. & E. 725) 109 
 Hicks, R. v., (20 C. C. C. 192) 447 
 Higgins, R. v., (10 C. C. C.456) 50 
 Higgins, R. v., (8 Q. B. 150; 
 
 10 Jur. 838) Ill 
 
 Higgins. R. v., 4 U. C. R. (O. 
 
 S.) 83 231 
 
 Higham, R. v., (7 E. & B. 557) 
 
 146, 509 
 Highmore, R. v., (2 Ld. Raym. 
 
 1220) 251 
 
 Hilchie, Ex parte, (11 C. C. C. 
 
 85) 200 
 
 Hill, Ex parte, (31 N. B. R. 
 
 84) 270, 494 
 
 Hill, Ex parte, (3 C. & P. 225) 473 
 Hindley v. Haslam, (39 Q. B. 
 
 D. 81) 37 
 
 Histed, R. v., (19 Cox. 16).. 217 
 Hoare, R. v., (12 C. C. C. 1) . 363 
 Hodge, R. v., (2 C. C. C. 350) 61 
 Hodges, R. v., (8 C. & P. 195) 46 
 Hodgins, R. v., (12 O. R. 367) 76 
 Hodgson v. Little, (16 C. B. N. 
 
 S. 202) 357 
 
 Hoesson Rahim, Re, (19 C. C. 
 
 C. 394) 480 
 
 Hogan, Ex parte, (32 N. B. R. 
 
 247) 147 
 
 Hogarth, R. v., (24 O. R. 60) 409 
 Hoggard, R. v., (30 U. C. R. 
 
 152) 273, 489 
 
 Holden, R. v., (3 M. R. 579) 224 
 Holland, R. v., (4 C. C. C. 79) 4 
 Holland, R. v., (37 U. C. R. 
 
 214) 264, 494 
 
 Holley, R. v., (4 C. C. C. 510) 
 
 120, 185, 195 
 
 Hollis, R. v., (2 Stark. 536) . 290 
 Holman, In re, (3 R. & G. N. S. 
 
 R. 375) SO 
 
 Holman & Rea, Re, (No. 2), 
 
 (21 C. C. C. 11) ...86, 113, 197 
 Holmes, R. v., (12 C. C. C. 235) 76 
 Holyoke, R. v., (21 C. C. C. 
 
 422) 80, 151, 494, 498, 51,5 
 
 Honan, U. v., (20 C. C. C. 10) 
 
 391, 393 
 
 PAGE 
 Hong Lee, (10 W. L. R. 376; 
 
 15 C. C. C. 39) ...86, 224, 424 
 Hood. R. v., (1 M. C. C. 281) 157 
 Hoo Sans, R. v., (19 C. C. C. 
 
 259) 220 
 
 Hoo Yoke, R. v., (10 C. C C. 
 
 211) 223 
 
 Hope v. Evered, (17 Q. B. D. 
 
 338) 123 
 
 Hope-Young, R. v., (10 C. C. 
 
 C. 466) 219 
 
 Hoffe's Bail, Re, (22 C. C. C. 
 
 116) 228 
 
 Hopkins, Ex parte, (61 L. J. 
 
 Q. B. 240) 273 
 
 Hopkins v. Smith, (1 O L. R. 
 
 659) 36 
 
 Hopwood, Ex parte, (15 Q. B. 
 
 121) 147, 257 
 
 Hornbrook, R. v., (38 N. B. R. 
 
 358; 4 E. L. R. 508) 255 
 
 Horner, R. v., (1 Leach C. C. 
 
 305) 467 
 
 Horning, R. v., (8 C. C. C. 268) 493 
 Horsman, Ex parte, (15 C. C. 
 
 C. 280) 366 
 
 Horton, R. v., (3 C. C. C. 84; 
 
 34 C. L. J. 42) 308, 473, 444 
 
 Hoskins, Re, (21 C. C. C. 435) 302 
 Hostetter v. Thomas, (5 C. C. 
 
 C. 10) 330 
 
 Hostyn, R. v., (9 C. C. C. 138) 
 
 502 521 
 Hottentot Venus Case, (13 East 
 
 195) 462 
 
 Houghton, R. v., (1 El. & B. 
 
 501) 39 
 
 House, R. v., (2 M. R. 58) 224 
 
 Howard, Ex parte, (25 N. B. R. 
 
 191) 291 
 
 Howard, Ex parte, (32 N. B. R. 
 
 237) 299 
 
 Howell, R. v., (16 C. C. C. 178 ; 
 
 19 M. R. 317) 410 
 
 Howes, R. v., (6 C. C. C. 238) 444 
 Hube, R. v., (5 T. R. 542) ... 488 
 Huber, R. v., (14 C. C. C. 447) 370 
 Hudgins, R. v., (12 C. C. C. 
 
 223) 123 
 
 Hudson, R. v., (Bell 263; 29 
 
 L. J. M. C. 145) 68 
 
 Huggins, R. v., [1895] 1 Q. B. 
 
 563 79 
 
 Hughes, R. v., (17 N. S. R. 194) 73 
 Hughes, R. v., (3 A. & E. 425) 108 
 Hughes, R. v., (4 Q. B. D. 614) 
 
 119, 120, 151, 159 
 
 Hughes, R. v., (2 C. C. C. 5) . 501 
 Hughes, R. v., (2 C. C. C.332) 131 
 Hughes, R. v., (1 Cox 176).. 221 
 Hughes v. Wavertree Local 
 Board. (10 T. L. R. 357; 58 
 
 J. P. 654) 353 
 
 Huguet, Ex parte, (29 L. T. 
 41) 470
 
 XX 
 
 TABLE OP CASES. 
 
 PAGE 
 
 Ilulcott, R. v., (6 T. R. 583) 289 
 Hung Gee, R. v., (21 C. C. C. 
 
 404) 391, 392 
 
 Hung Gee, R. v., (21 C. C. C. 
 
 411) 509 
 
 Hunt v. Shaver, (22 A. R. 202) 105 
 Hunter v. Gilkison, (7 O. R. 
 
 735) 92, 473 
 
 Kurd, R. v., (21 C. C. C. 98) . 220 
 Hutchinson, R. v., (8 C. C. C. 
 
 486; 11 B. C. R. 24) . .69, 70, 546 
 
 Ikezoya v. Can. Pac. Ry. Co., 
 
 (12 B. C. R. 454) 480 
 
 Iman Din, R. v., (18 C. C. C. 
 
 82) 49, 204, 253 
 
 Ingham, R. v., (17 Q. B. 884) 96 
 Ing Kon, R. v., (14 C. C. C. 
 
 197) 365 
 
 Ing Kon v. Archibald, (14 C. 
 
 C. C. 201) 365 
 
 Ireland v. Pitcher, (11 P. R. 
 
 403) 101 
 
 Irish, R. v., (14 C. C. C. 458) 
 
 51, 369 
 Irving, Ex parte, (35 N. B. R. 
 
 461) 485 
 
 Irwing, R. v., (14 C. C. C. 489) 
 
 257, 262 
 Isaac v. Impey, (10 B. & C. 
 
 442) 194 
 
 Jack. R. v., (No. 2), (5 C. C. 
 
 C. 304) 387, 398, 445 
 
 Jackson, R. v., (22 C. C. C.215) 396 
 
 Jacobs, R. v., (4 Cox 54) 215 
 
 James, R. v., (6 C. C. C. 159; 
 
 4 O. L. R. 537) 49 
 
 James, R. v., (19 C. C. C.391) 220 
 Janneau, R. v., (12 C. C. C. 
 
 360) 260 
 
 Jarrald, R. v., (32 L. J. M. C. 
 
 258) 129, 130 
 
 Jarvis, R. v., (2 M. & Rob 40) 63 
 
 Jeffreys, R. v., (22 L. T. 786) 260 
 
 Jeffries, R. v., (1 T. R. 241).. 251 
 
 Jenkins, R. v., (14 C. C. C.221) 419 
 
 Jennings, R. v., (3 Keb. 383) 239 
 
 Jeyes, R. v., (3 A. & E. 416) . . 108 
 
 Jodrey, R. v., (9 C. C. C. 477) 209 
 John v. The Queen, (15 S. C. 
 
 R. 385) 65, 66 
 
 John Cook, Ex parte, (3 C. C. 
 
 C. 72) 395, 413 
 
 John Doe, Re, (3 C. C. C.370) 318 
 
 John's Case, (I East. P. C. 357) 543 
 John Smith, Ex parte, (2 D. & 
 
 R. 461) 286 
 
 Johnson, R. v., (2 B. C. R. 
 
 87) 193 
 
 Johnson, R. v., (2 C. & K. 354) 207 
 
 Johnson, R. v., (1 Sir. 261).. 142 
 Johnson,' R. v., (8 C. C. C. 123) 
 
 51, 511 
 Johnson, R. v., (17 C. C. C. 
 
 172) 41, 115, 452 
 
 PAGE 
 Johnson, R. v., (17 C. C. C. 
 
 175) 34:; 
 
 Johnson, R. v., (19 C. C. C. 
 
 203; 20 C. C. C. 8) 
 
 259, 405, 472 
 Johnson, R. v., (23 C. C. C. 
 
 136) 396 
 
 Johnson, Ex parte, (32 L. J. 
 
 M. C. 193) 241 
 
 Johnson v. Colam, (L. R. 10 Q. 
 
 B. 544: 44 L. J. M. C. 185; 
 
 32 L. T. 725) 152, 239 
 
 Johnston, R. v., (6 C. C. C. 
 
 232) 70 
 
 Johnston, R. v., (No. 1), (11 
 
 C. C. C. 6) 304 
 
 Johnston, R. v., (No. 2), (11 
 
 C. C. C. 10) 325 
 
 Johnston, R. v., (13 C. C. C. 
 
 179) 326 
 
 Johnstone, R. v., (16 C. C. C. 
 
 379) 389 
 
 Johnston, R. v., (17 C. C. C. 
 
 369) 143 
 
 Johnston v. Meldon, (30 L. R. 
 
 Ir. 15) 82, 90 
 
 Johnston v. McDougall, (17 C. 
 
 C. C. 58, 398) ..17, 92, 175, 372 
 Johnston v. O'Reilly, (12 C. C. 
 
 C. 219; 16 M. R. 405) 
 
 87, 129, 495, 498 
 Johnston v. Robertson, (13 C. 
 
 C. C. 452) 325, 483 
 
 Jones, R. v., (18 C. C. C. 414) 499 
 Jones, R. v., [1894] 2 Q. B. 
 
 382 485 
 
 Jones, R. v., (1 Den. 558)... 88 
 Jones, R. v., 6 St. Tr., (N.S.) 
 
 811 56 
 
 Jones, Ex parte, (19 L. J. M. 
 
 C. 151 ; 1 L. M. & P. 357) . . 146 
 Jones v. Grace, (17 O. R. 681) 
 
 92, 95, 100, 16S 
 
 Jones v. Ross, (3 U. C. R. 328) 161 
 Jones v. Williams, (36 L. T. N. 
 
 S. 559; 46 L. J. M. C. 270) 86 
 Jordan, R. v., (5 C. C. C. 438 > 
 
 331 332 
 
 Joseph, R. v., (4 C. C. C. 126)' 336 
 Jukes, R. v., (8 T. R. 536) . . . 
 
 134, 273, 488 
 Jung Lee, R. v., (22 C. C. C. 
 
 63) 391, 392, 393 
 
 Justice v. Gosling, (21 L. J. C. 
 
 P. 94) 40 
 
 Kalabeen, R. v., (1 B. C. R., pt. 
 
 1,1) 212 
 
 Kalar v. Cornwall, (8 U. C. R. 
 
 168) 95 
 
 Kalke, Ex parte, (14 C. C. C. 
 
 22) 460 
 
 Karn, R. v., (5 C. C. C. 543) 50 
 Karn, R. v., (5 O. L. R. 704; 
 
 6 C. C. C. 479) 421
 
 TABLE OF CASES. 
 
 XXI 
 
 PAGE 
 Kaulbach, R. v., (22 C. C. C. 
 
 219) 286 
 
 Kavanagh, R. v., (5 C. C. C. 
 
 507) 471 
 
 Kay, R. v., (9 C. C. C. 406; 11 
 
 B. C. R. 157) 217 
 
 Kaye, Re, (1 D. & R. 436) ... 515 
 Keeler, R. v., (7 P. R. 117) . . 
 
 231, 232 
 Keenahan v. Egleson, (22 U. 
 
 C. R. 626) 105 
 
 Keenan, R. v., (21 C. C. C. 
 
 467) 494 
 
 Keeping, R. v., (34 N. S. R. 
 
 442 282, 396. 474 
 
 Keeping, R. v., (4 C. C. C. 494) 282 
 Kehr, R. v., (11 C. C. C. 52) . 
 
 121, 429, 483, 498 
 Kelly, R. v., (6 C. P. 372) ... 57 
 Kelly, In re, (27 N. B. R. 553) 498 
 Kelly, Re, (5 C. C. C. 541) ;.. 50 
 Kelly, q.t. v., Cowan. (18 U. C. 
 
 R. 104) 105 
 
 Kemble v. McGarry, (6 O. S. 
 
 570) 99 
 
 Kennedy, Re, (17 C. C. C. 342) 
 
 148, 489 
 Kennedy v. Kokoliades, (17 C. 
 
 C. C. 4) 379 
 
 Kennedy, R. v.. (86 L. T. 753) 141 
 Kennedy, R. v., (17 O. R. 159) 255 
 Kennett, R. v., (5 C. & P. 282) 
 
 56, 58 
 Kenrick, R. v., (5 Q. B. 49 ; 12 
 
 L. J. M. C. 135) G8 
 
 Kent. R. v., (2 Ld. Raym. 
 
 1546) 122 
 
 Kent, Ex parte, (7 C. C. C. 447) 307 
 Kent, J.T., R. v., (40 L. J. M. 
 
 C. 76) 517 
 
 Kent v. Olds, (7 U. C. L. J. 21) 335 
 Keohan v. Cook, (1 N. W. T. 
 
 Rep. 125) 
 
 Kerr, R. v., (26 C. P. 214) ... 
 Keddy, R. v., (4 D. & R. 734) 
 Kimbalton, Ex parte, (25 J. P. 
 
 759; 5 L. T. 347) 186 
 
 King, R. v., [1897] 1 Q. B. 
 
 214; 66 L. J. Q. B. 87 ... 39 
 King, R. v., (37 C. L. J. 317) 224 
 King, R. v., (4 C. C. C. 128) . 335 
 King, (J. W.) R. v., (4 C. C. 
 
 C. 426) 300, 427 
 
 King v. Osmer, (5 East. 308) . 169 
 Kingston, R. v., (8 East. 41) . 290 
 King&tone v. Wallace, (25 N. B. 
 
 R. 573) 159 
 
 Kinnis v. Graves, (19 Cox 42) 86 
 Kinnis v. Groves, (67 L. J. Q. 
 
 B. 584) 184 
 
 Kirvvin, R. v., (20 C. C. C. 181) 
 
 269, 270 
 Kite and Lane's Case, (1 B. & 
 
 C. 101) 122 
 
 PAGE 
 Klein, R. v., (11 W. L. R. 249 ; 
 
 16 C. C. C. 503) 414, 453 
 
 Klemp, R. v., (10 O. R. 143) 80 
 Kneeland, R. v., (Q. R. 11 K. 
 
 B. 85; 6 C. C. C. 81) 56 
 
 Knight v. Halliwell, .(L. R. 9 
 
 Q. B. 412) 352 
 
 Knowles, R. v., (21 C. C. C. 
 
 321) 394 
 
 Kokoliades v. Kennedy, (17 C. 
 
 C. C. 4 ; 18 C. C. C. 495) . . 
 
 375 379 
 Kolotyla, R. v. (21 M. R. 197 ; 
 
 19 C. C. C. 25) 276 
 
 Koogo, R. v., (19 C. C. C. 56) 
 
 324, 336, 365 
 Koolberger, R. v., (16 C. C. C. 
 
 228) 387 
 
 Krans, Ex parte, (1 B. & C. 
 
 258) 467 
 
 Kroesing, R. v., (10 W. L. R. 
 
 649; 16 C. C. C. 312) .... 51 
 
 Labbe, R. v., (17 C. C. C.417) 51 
 Labelle v. McMillan, (34 N. B. 
 
 R. 488) 101 
 
 Lacoursiere, R. v., (8 M. R. 
 
 302) 83 
 
 LaCroix, Re, (12 C. C. C. 297) 
 
 259, 521 
 Lafleur v. Vallee, (19 C. C. C. 
 
 362) 224, 311 
 
 Lai Ping, R. v., (8 C. C. C.467; 
 
 11 B. C. R. 102) 202, 419 
 
 Laird, R. v., (1 Terr. L. R. 179) 301 
 Laity, R. v., (21 C. C. C. 417) 
 
 38, 379 
 Lake v. Butler, (24 L. J. Q. B. 
 
 273) 167 
 
 Laliberte & Fortin, (Q. R. 2 Q. 
 
 B. 5731 HI 
 
 Lalonde, R. v., (9 C. C. C.501) 477 
 Lambert, Re, (4 C. C. C. 533) 374 
 Lambe's Case, (2 Leach C. C. 
 
 625) 211, 216 
 
 Lamonthe, R. v., (15 C. C. C. 
 
 62) 394, 447 
 
 Lancashire, JJ., R. v., (4 B. & 
 
 Aid. 289) 517 
 
 Langford, R. v., (15 O. R. 52) 
 
 80, 148 
 Langlois, R. v., (20 C. C. C. 
 
 183) 119,238,252, 273 
 
 Langwith v. Dawson, (30 C. P. 
 
 375) 74 
 
 Lantz, R. v.. (15 D. L. R. 651; 
 
 22 C. C. C. 212) 211 
 
 Lapiere, R. v., (1 C. C. C. 413) 65 
 Lapointe, R. v., (20 C. C. C. 
 
 98) 252 
 
 Lariu v. Boyd, (11 C. C. C. 74) 297 
 Laughley, Ex parte, (28 N. B. 
 
 R. 656) 80 
 
 Laughton, R. v., (20 C. C. C. 
 
 30; 22 M. R. 520) 76
 
 XX11 
 
 TABLE OF CASES. 
 
 PAGE 
 Launock v. Brown, (2 B. & Aid. 
 
 592) 164 
 
 Laurin. R. v., (No. 3), (5 C. C. 
 
 C. 548) 173 
 
 Laurin, R. v., (6 C. C. C. 135) 547 
 Law, R. v., (15 C. C. C. 382). 541 
 Law, R. v., (27 U. C. R. 260) 288 
 Law Bow, R. v., (7 C. C. C. 
 
 468) 300, 501 
 
 Lawrence, R. v., (1 C. C. C. 
 
 295) 229 
 
 Lawrenson v. Hill, (10 Ir. C. 
 
 L. R. 177) 120, 137, 159 
 
 Layton, R. v., (4 Cox. 149) . . 46 
 Lazier, In re, (29 S. C. R. 630) 459 
 Lea v. Charrington, (23 Q. B. 
 
 D. 45) 123 
 
 Leach, R. v., (14 C. C. C. 375) 365 
 Leach and Fogarty, Re, (18 C. 
 
 C. C. 487) 371 
 
 Leary, R. v., (8 C. C. C. 141) .. 274 
 Leary v. Patrick, (15 Q. B. 266; 
 
 19 L. J. M. C. 211) 94 
 
 LeBel, Ex parte, (16 C. C. C. 
 
 363) 263 
 
 Leblanc, R. v., (21 C. C. C.221) 
 
 119, 142, 365 
 Leblanc, Re, (22 C. C. C. 208) 
 
 303, 311, 468 
 Leceistershire, JJ., R. v., (15 
 
 Q. B. 88) 334 
 
 Leconte, R. v., (11 C. C. C. 41) 84 
 Lecours v. Hurtubise, (2 C. C. 
 
 C. 521) 322 
 
 Lee, R. v., (15 O. R. 353) ... 73 
 Lee, R. v., (17 C. C. C. 190) .. 375 
 Lee Chu, R. v., (14 C. C. C. 
 
 322) 160, 483 
 
 Lee Guey, R. v., (13 C. C. C. 
 
 80; 15 O. L. R. 235) 
 
 118, 394, 395, 447 
 Lee How, R. v., (4 C. C. C. 
 
 551) 124, 243 
 
 Lee Tuck, R. v., (19 C. C. C. 
 
 471) 202 
 
 Leeson, R. v., (5 C. C. C. 184) 79 
 Leeson v. General Council, (43 
 
 Ch. D. 366) 81 
 
 Leet, R. v., (20 C. L. T. Occ. 
 
 N. 46) 224 
 
 Lefroy, R. v., L. R. (8 Q. B. 
 
 134) 250 
 
 Legg v. Pardoe, (9 C. B. N. S. 
 
 289 ; 30 L. J. M. C. 108) . . 83 
 Legros, R. v., (14 C. C. C. 162) 405 
 Leitz, Ex parte, (No. 1), (3 C. 
 
 C. C. 54) 468 
 
 Lennox, R. v., (34 U. C. R. 28) 123 
 Leonard v. Pelletier, (9 C. C. 
 
 C. 19) 285, 496 
 
 Leonard Watson's Case, (9 A. 
 
 & E. 731) 466 
 
 Lepez, R. v., (Dears. & B. 525) 53 
 Lepine, R. v., (4 C. C. C. 145) 
 
 154, 177 
 
 PAGE 
 
 Leschinski, R. v., (17 C. C. C. 
 
 199) 472 
 
 Levesque, R. v., (8 C. C. C. 505) 
 
 253, 254 
 
 Levi, Re, (1 C. C. C. 74) ... 478 
 Levitt, R. v., (Cro. Car. 538) . 53 
 Lewis, Re, (9 C. C. C. 233) ... 471 
 Lewis, R. v., (6 C. C. C. 499). 507 
 Lewis, R. v., (7 C. C. C. 261; 
 
 6 O. L. R. 132) 50 
 
 Lewis, R. v., (10 C. C. C. 184) 
 
 372, 373 
 Lewis, Ex parte, (16 Cox. C. C. 
 
 449) 96 
 
 Lewis, Ex parte, (21 Q. B. D. 
 
 191) 110, 144 
 
 L'Heureux, R. v., (14 C. C. C. 
 
 100) 259, 280 
 
 Lindsay, Ex parte, (15 C. C. C. 
 
 252) .- 366 
 
 Littlechild, R. v., (L. R. 6 Q. 
 
 B. 293) 245 
 
 Liverpool, R. v., (15 Q. B. 
 
 1070) 334 
 
 Livingstone v. Massey, (23 TJ. 
 
 C. R. 156) 37 
 
 Lizotte, R. v., (10 C. C. C, 316) 
 
 121, 160 
 Llanfaethly, R. v., (2 E. & B. 
 
 940) 348 
 
 Lloyd, R. v., (19 O. R. 352) .. 59 
 Lockhart v. St. Albans, (21 Q. 
 
 B. D. 188) 351, 352 
 
 London, R. v. City of, (E. B. 
 
 & E. 509; 27 L. J. M. C. 
 
 231) 441 
 
 London. R. v. Lord Mayor of, 
 
 (16 Cox 81) 1 223 
 
 Long, R. v., (1 M. & R. 139) .. 489 
 Long, R. v., (6 C. & P. 179) . . 541 
 Longeway v. Avison, (8 O. R. 
 
 357) 105 
 
 Lon Kai Long, Ex parte, (1C. 
 
 C. C. 120) 299 
 
 Lord, R. v., (16 L. J. M. C. 15) 233 
 Lord's Day Act, Re, (16 C. C. 
 
 C. 459) 379 
 
 Lorenzo, R. v.. (14 O. W. R. 
 
 1038 ; 16 C. C. C. 19) .. .262, 263 
 Lorrimer, R. v., (14 C. C. C. 
 
 430) 81, 122 
 
 Lowrey, R. v., (13 C. C. C. 105) 
 
 429, 482, 483 
 Luigi, R. v., (14 O. W. R. 1041 ; 
 
 16 C. C. C. 25) 263 
 
 Lushington, R. v., [1894] 1 Q. 
 
 B. 420 224 
 
 Luttrel, R. v., (18 C. C. C. 295) 389 
 
 Lynch, Re, (12 C. C. C. 343) . 286 
 
 Lynch, R. v., (12 C. C. C. 142) 74 
 
 Lynch, K. v., (12 O. R. 378) 337 
 
 Lynch, R. v., (19 O. R. 664) . 75 
 
 Lyon, R. v., (2 C. C. C. 242) . 50 
 
 Lvon, R. v., (3 Burr. 1461) . . 236
 
 TABLE OF CASES. 
 
 XX111 
 
 PAGE 
 
 Lyons, R. v., (2 C. C. C. 218) . 
 
 85, 86 
 
 Lyons, R. v., (10 C. C. C. 130) 255 
 
 Lyons, R. v., (16 C. C. C. 152) 65 
 
 Mabee, R. v., (17 O. R. 194) .. 254 
 Mabey, R. v., (37 U. C. R. 248) 303 
 Macclesfield, JJ., R. Y., (2 L. T. 
 
 352; 13 Q. B. 881) 356 
 
 Macklin, R. v., (5 Cox 216) . . 441 
 Madan v. Catarrach, (7 H. & 
 
 N. 360) 205 
 
 Madden, Ex parte, (13 C. C. C. 
 
 273) 121, 143, 160 
 
 Madden, R. v., (10 L. C. Jurist, 
 
 344) 53 
 
 Madden, R. v., (31 U. C. R. 
 
 333) 345 
 
 Madden v. Shewer, (2 U. C. R. 
 
 115) 99 
 
 Magistrates of Ballycastle, R. v., 
 
 (9 L. T. R. 88) 83 
 
 Maguire, Ex parte, (7 L. C. R. 
 
 57) 231 
 
 Mah Sam, R. v., (19 C. C. C. 
 
 1) 134, 246, 413 
 
 Mahon, R. v., (4 A. & E. 575) 36 
 Mailloux, R. v., (3 Pug. N. B. 
 
 R. 493) 49, 53, 56 
 
 Mainville. Ex parte Eliza, (1C. 
 
 C. CV 528) 9 
 
 Mainwaring, R. v., (27 L. J. M. 
 
 C. 278) 124 
 
 Major, R. v., (14 O. W. R. 
 
 1111) 263 
 
 Major, R. v., (29 N. S. R. 373) 81 
 Malcolm, R. v., (2 O. R. 511). 83 
 Male & Cooper, R. v., (17 Cox 
 
 689) 21S 
 
 Mali, R. v., (19 C. C. C. 184) 410 
 Mallinson, R. v., (2 Burr. 681) 142 
 Mallory, R. v., (13 Q. B. D. 33) 542 
 Malloy, R. v., (4 C. C. C. 116) 340 
 Manchester Ry. Co., R. T., (8 
 
 'A. & E. 413) 517 
 
 Manning, R. v., (2 C. & K. 
 
 887) 52, 63 
 
 Marcinko, R. v., (19 C. C. C. 
 
 388) 396, 506 
 
 Marcott, R. v., (4 C. C. C. 437) 50 
 Margate Pier Co. v. Hannam, 
 
 (3 B. & Aid. 266) 75 
 
 Markham, Ex parte, (21 L. T. 
 
 748) 356 
 
 Marks, R. v., (3 East 157; 2 
 
 Hale 129) 233. 467 
 
 Marquis of Stafford, R. v., (3 
 
 T. R. 646) 108 
 
 Marquis, R. v., (8 C. C. C. 346) 
 
 496, 499 
 Marsh, R. v., (21 C. C. C. 413) 
 
 38, 379 
 
 Marshall. R. v., (2 Keb. 594) 278 
 Martin, R. v., (9 C. C. C. 371) 540 
 Martin, R. v., (18C. C. C. 107) 108 
 
 PAGE 
 Martin v. Pridgeon, (28 L. J. 
 
 M. . 179) 135, 265 
 
 Martin & Garlow, Re, (15 C. C. 
 
 C. 446) 511 
 
 Martinuik, R. v., (22 C. C. C. 
 
 275) ."S3 
 
 Mason, R. v., (5 P. R. 125) .. 233 
 Mason v. Bibby, (33 L,. J. M. 
 
 C. 105) 146, 147 
 
 Massey v. Johnson, (12 East 
 
 67) 97 
 
 Massey v. Morris, [1894], 2 Q. 
 
 B. 412 48 
 
 Matheson, R. v., (20 C. C. C. 
 
 153, 496) , 157, 365 
 
 Matheson, R. v., (21 C. C. C. 
 
 312) 372, 445 
 
 Matthews v. Carpenter, (16 L. 
 
 R. Ir. 420) 241 
 
 Maxwell v. Clark, (10 M. R. 
 
 406) 112 
 
 May, R. v., (9 C. C. C. 529) . . 236 
 May v. Reid, (16 A. R. 150). 223 
 Mayor v. Harding, (L. R. 2 
 
 Q. B. 410; 16 L. T. 429) .. 354 
 Meafcin, R. v., (7 C. & P. 897) ' 45 
 Meceklette, R. v., (15 C. C. C. 
 
 17) 424, 
 
 Meehan, R. v., (No. 1), (5 C. 
 
 C. C. 307) 
 
 Meehan, R. v., (No. 2), (5 C. 
 
 C. C. 312) 
 
 107. 109, 177, 182, 359, 435 
 Meikleham, R. v., (10 C. C. C. 
 
 382) 360, 370, 505 
 
 Melanson, Ex parte, (13 C. C. 
 
 C. 251) 155, 275 
 
 Meloche v. Deguire, (8 C. C. C. 
 
 89) 36 
 
 Menary, R. v., (18 C.C. C. 237) 65 
 Menary, R. v., (19 O. R. 691) 
 
 343, fCl 
 Mennel, R. v., (1 Terr. L. R. 
 
 487) 51 
 
 Mereier, R. v., (6 C. C. C. 44) 496 
 Mercier, R. v., (18 C. C. C. 363) 143 
 Metcalfe v. Reeve, (9 U. C. R. 
 
 263) 105 
 
 Meyer, R. v., (1 Q. B. D. 173) 77 
 Meyer, R. v., (11 P. R. 477).. 
 
 221, 264 
 Michaud, R. v., (17 C. C. C. 86) 
 
 245, 279 
 Mitchell v. Brown, (1 E. & E. 
 
 267; 28 L. J. M. C. 53) .. 
 
 286, 406 
 Middlehurst, R. v., (1 Burr. 
 
 399) 273 
 
 Middlesex, JJ., o'f, R. v., (5 A. 
 
 & E. 626) 515 
 
 Middlesex, JJ. of, R. v., (9 A. 
 
 & E. 540) 108, 177 
 
 Middlesex, JJ. of, R. v., (3 B. 
 
 & A. 938) 321 
 
 Middlesex, JJ. of, R. v., (2 
 
 Dowl. & Dowl. 719) 341
 
 XXIV 
 
 TABLE OF CASES. 
 
 PAGE 
 Middlesex, JJ. of, R. v., (9 
 
 Dowl. P. C. 163) 340 
 
 Middlesex. JJ. of, R. v., (8 D. 
 
 & R. 117) 488 
 
 Middlesex, JJ. of, R. v., (46 L. 
 
 J. M. C. 225 ; 2 Q. B. D. 516) 
 
 324, 505 
 Midland Ry. Co. v. Edmonton, 
 
 (17 Cox 731) 346 
 
 Miles, R. v., (24 Q. B. D. 423) 39 
 Millard, R. v., (22 L. J. M. C. 
 
 108) 245 
 
 Miller, R. v., (15 C. C. C. 87) . 
 
 153, 261 
 Miller, R. v., (No. 2), (15 C. 
 
 C. C. 156) 480 
 
 Miller v. Lea, (25 A. R. 428) 
 
 242, 297 
 
 Milloy, R. v., (4 C. C. C. 116) .322 
 Mills v. Collett, (6 Bing. 85). 208 
 Milne, R. v., (25 C. P. 94) . . 86 
 Mines, R. v., (1 C. C. C. 217; 
 
 25 O. R. 577) 180, 198, 288 
 
 Minshull, R. v., (1 N. & M.277) 268 
 Mdschowsky, R. v., (15 C. C. C. 
 
 364) 327 
 
 Mitchell, R. v., (13 C. C. C. 
 
 344) 319 
 
 Mitchell, R. y., (19 C. C. C. 113) 
 
 41, 143, 301, 469 
 Mitchell, Ex parte, (16 C. C. C. 
 
 205) 284, 368, 370 
 
 Mitchell v. Brown, (1 E. & E. 
 
 267; 28 L. J. M. C. 53) .. 
 
 286, 406 
 Mitchell v. Foster, (12 A. & E. 
 
 472) 147 
 
 Moberley v. Collingwood, (25 O. 
 
 R. 625) 83 
 
 Moffatt v. Barnard, (24 U. C. 
 
 R. 498) 95, 306 
 
 Mole. R. v., 3 St. Tr. (N.S.) 
 
 1312 56 
 
 Monaghan, R. v., (2 C. C. C. 
 
 488) 348, 497 
 
 Monahan, Ex parte, (17 C. C. 
 
 C. 53) 18, 252, 253, 262 
 
 Money v. Leach, (1 Wm. Bl. 
 
 555; 19 Howell's St. Trials 
 
 1002) 158 
 
 Monmouthshire, JJ., R. v.. (1 
 
 B. & Ad. 895 334 
 
 Monmouthshire, JJ., R. v., (26 
 
 L. J. M. C. 183) 244 
 
 Montgomery, R. v., (19 C. C. C. 
 
 233) 65 
 
 Monroe v. Twisleton, (Peake 
 
 Add. Ca. 219) 542 
 
 Montreal (City of) v. Fortier, 
 
 6 C. C. C. 340) 375 
 
 Moodie, R. v., (20 U. C. R. 399) 53 
 Mooney, R. v., (11 C. C. C. 
 
 333) 179 
 
 Moore, R. v., (2 C. C. C. 57) 274 
 Moore v. Sharkey, (26 N. B. R. 
 
 7) 153 
 
 PAGE 
 
 Moran v. Palmer, (13 C. P. 
 
 528) 100 
 
 Morgan, R. v., (1 B. C. R., pt. 
 
 1, 245) 281 
 
 Morgan, R. v., (5 C. C. C. 63) 
 
 384, 386, 402, 466, 469 
 Morgan, R. v., (No. 2), (5 C. 
 
 C. C. 272) ....65, 403, 466, 469 
 Morgan, R. v., (5 M. R. 63) . . 284 
 Morgan v. Brown, (4 A. & E. 
 
 515) 291 
 
 Morgan v. Hughes, (2 T. R. 
 
 225) 92 
 
 Morison, Ex parte, (16 C. C C. 
 
 28; 39 N. B. R. 298) . . .368, 498 
 Morley, R. v.. (2 Burr. 1042) 491 
 Morningstar, R. v., (11 C. C. 
 
 C. 15 ; 11 O. L. R. 318) . .429, .483 
 Morris, R. v., (L. R. 1 C. C. 
 
 R. 90; 36 L. J. M. C. 84) . . 39 
 Morris, R. v., (16 C. C. C. 1) 
 
 301, 302, 484 
 Morrison, R. v., (15 C. C. C. 
 
 215) 367 
 
 Morrison v. Lennard, (3 C. & 
 
 P. 127) 205 
 
 Morse, R. v., (22 N. S. R. 298) 262 
 Morton, R. v., (19 C. P. 9) .. 184 
 Morton, iR. v., (19 C. P. 26) 222 
 Morton, R. v., (23 C. C. C. 172) 383 
 Mosier, R. v., (4 P. R. 64) .471, 482 
 Mott v. Milne, (31 N. S. R. 
 
 372) 98 
 
 Mulcahy v. The Queen, (L. R. 
 
 3 H. L. 317) 69 
 
 Mullady, R. v., (4 P. R. 314) . 231 
 Munroe, R. v., (19 C. C. C. 86) 276 
 Murdock, R. v., (4 C. C. C. 82) 
 
 300. 504 
 Murdock, R. v., (21 L. J. M. 
 
 C. 22) 131 
 
 Murfina v. Sauve, (6 C. C. C. 
 
 275) 160. 246 
 
 Murphy, In re, (28 N. S. R. 
 
 196) 473, 485 
 
 Murphy, Re, (2 C. C. C. 562) 
 
 468, 473 
 
 Murphy, R. v., (2 N. S. R. 158) 231 
 Murphy, R. v., (8 C. & P. 297) 
 
 206, 20.-) 
 Murphy, q.t. v. Harvey, (9 C. 
 
 P. 528) 105 
 
 Murray, R. v., (1 C. C. C. 452) 
 
 167, 472 
 
 Mnssett, .R. v., (26 L. T. 429) 242 
 Myers & Wonnacot, Re, (23 F. 
 
 C. R. 611) 335 
 
 MacDonald, Ex parte, (3 C. T. 
 
 C. 10; 27 S. C. R. 683) ... 
 
 281, 459 
 MaoDonald, R. v., (2 C. C. C. 
 
 221) 216 
 
 MaoDonald, R. v., (No. 2), (5 
 
 C. C. C. 279) 349, 468, 497
 
 TABLE OF CASES. 
 
 XXV 
 
 PAGE 
 
 MacDonald, R. v., (16 C. C. C. 
 
 121) 484 
 
 Macleod v. New South Wales, 
 
 [1894] A. C. 455 86 
 
 McAllan, R. v., (45 U. C. R. 
 
 402) 515 
 
 McAllister, R. v., (14 D. L. R. 
 
 430; 22 C. C. C. 166) .... 
 
 51, 369, 371 
 McAnn, R. v., (3 C. C. C. 110; 
 
 4 B. C. R. 587) ..271, 501, 508 
 McArthur, R. v., (14 C. C. C. 
 
 343) 507 
 
 McArthur's Bail, Re, (3 C. C. 
 
 C. 195) 236 
 
 McAuley, R. v., (14 O. R. 643) 
 
 145. 147 
 McRerny, R. v., (29 N. S. R. 
 
 327; 3 C. C. C. 339) .49, 252, 253 
 McCabe, R. v., (18 C. C. C. 
 
 217) 321 
 
 McCarthy, R. v., (11 O. R. 
 
 657) 291 
 
 McCatherin v. Jamers, (21 C. C. 
 
 C. 116) 119 
 
 McCleave, Ex parte, (14 C. C. 
 
 C. 18) 81 
 
 MoCormack, R. v., (7 C. C. C. 
 
 135; 9 B. C. R. 497) 275 
 
 McCorquindale. Ex parte, (15 
 
 C. C. C. 187) 269, 326, 498 
 
 McCoy, Ex parte, (1 C. C. C. 
 
 410) 80 
 
 McCram v. Foley, (6 P. R. 
 
 164) 100 
 
 MeCraw v. The King, (13 C. C. 
 
 C. 337) 234 
 
 MoCready, R. v., (14 C. C. C. 
 
 482) 62 
 
 McDonald, Ex parte, (9 C. C. 
 
 . 368) 443 
 
 McDonald Bros. In re, (34 C. 
 
 L. J. 475) 280 
 
 McDonald, R. v., (2 C. C. C. 
 
 64) 317 
 
 McDonald, R. v., (2 C. C. C. 
 
 504) 299 
 
 McDonald, R. v., (3 C. C. C. 
 
 287) 115, 149, 159, 245 
 
 McDonald, R. v., (6 C. C. C. 1) 
 
 267, 313 
 McDonald, R. v., (12 O. R. 381) 
 
 83. 242 
 Mr-Donald, R. v., (16 C. C. C. 
 
 121) 302 
 
 McDonald, R. v., (21 C. C. C. 
 
 229) 152, 257 
 
 McDonald. R. v., (24 N. S. R. 
 
 44) 144 
 
 McDonald, R. v., (26 N. S. R. 
 
 94) 271 
 
 McDonald v. Bulwer, (11 L. T. 
 
 27) 137 
 
 McDonald v. Stuckey, (31 U. C. 
 
 R. 577) 92, 100 
 
 C.C.P. Bfl 
 
 PAGE 
 McEachern, R. v. (13 N. S. R. 
 
 321) 153 
 
 McElroy, R. v., (22 C. C. C. 
 
 123) 366, 507 
 
 McEwen, Ex parte, (12 C. C. C. 
 
 97) 79 
 
 McEwen, R. v., (17 M. R. 470; 
 
 7 W. L. R. 365; 13 C. C. C. 
 
 346) 404, 406, 422, 424, 472 
 
 McFarlane, R. v., (17 C. L. T. 
 
 Occ. N. 29) 284 
 
 McGillivray, Re, (13 C. C. C. 
 
 113) 145, 167 
 
 McGillivray v. Muir, (7 C. C. 
 
 C. 360) 106, 435 
 
 McGilvery v. Gault, (17 N. B. 
 
 R. 641) 99, 100 
 
 McGilvery v. Gault, (19 N. B. 
 
 R. 217 101 
 
 McGivney, R. v., (22 C. C. C. 
 
 222) 204 
 
 McGregor, R. v., (2 C. C. C. 
 
 410) 87, 115, 246, 448 
 
 McGregor, R. v., (10 C. . C. 
 
 313) 259, 521 
 
 McGregor, R. v., (26 O. R. 115) 281 
 McGregor v. Scarlett, (7 P. R. 
 
 20) 159 
 
 McGuiness v. Dafoe, (3 C. C. 
 
 C. 139; 23 A. R. 704; 27 O. 
 
 R. 117) 98, 99, 119, 159 
 
 McGuire, R. v., (4 C. C. C. 12) 
 
 42, 174 
 
 Mclntosh, R. v., (5 C. C. C. 
 
 254 ; 23 S. C. R. 180) 61 
 
 Mclntosh, R. v., (28 O. R. 
 
 603) 345, 350 
 
 Mclntosh v. Vansteenbury, (8 
 
 U. C. R. 248) 98 
 
 Mclntyre, Ex parte, (16 C. C. 
 
 C. 38) 284, 370 
 
 Mclntyre, R. v., (21 C. C. C. 
 
 216) 41 
 
 Mclntyre, R. v., (14 C. C. C. 
 
 43) 361 
 
 Mclnulty, R. v., (22 C. C. C. 
 
 347) 204 
 
 Mclsaac v. McNeil, (28 N. S. 
 
 R. 424) 510, 524 
 
 Mclver v. McGillivray, (24 C. 
 
 L. T. Occ. N. 142. 237) ... 95 
 Mclvor R. v., (7 C. C. C. 183) 
 
 308, 460 
 
 McKay, R. v., (17 C. C. C. 1) 495 
 McKeen v. Colpitts, (15 C. C. 
 
 C. 488) 372 
 
 McKenzie, Re, (2 R. & G. N. 
 
 S. R. 481) 480 
 
 MeKenzie, R. v., (12 C. C. C. 
 
 435) 308. 502, 505, 506 
 
 McKenzie, R. v., (17 C. C. C. 
 
 372) 263 
 
 McKenzie, R. v., (23 N. S. R. 
 
 6) 85, 150 
 
 McKenzie. R. v., (6 O. R. 165) 284
 
 XXVI 
 
 TABLE OP CASES. 
 
 PAGE 
 McKenzie v. Mewburn, (6 O. S. 
 
 486) 100 
 
 McKinley v. Munsie, (15 C. P. 
 
 230) 95 
 
 McKinnon, R. v., (5 C. C. C. 
 
 301) 124, 243 
 
 McKinnon, R. v., (12 C. C. C. 
 
 414) 311, 367 
 
 McLaughlin v. Recorder's Court 
 
 of Montreal, (4 Q. P. R. 304) 5 
 McLean, The Queen v., (3 C. 
 
 C. C. 323) 11 
 
 McLean, R. v., (5 C. C. C. 67) 
 
 118, 159 
 McLellan. R. v., (No. 1), (10 
 
 C. C. C. 1) 430 
 
 McLellan, q.t. v. Brown, (12 C 
 
 P. 542) 105 
 
 McLellan, q.t. v. Mclntyre, (12 
 
 C. P. 546) 105 
 
 McLellan v. McKinnon, (1 O. 
 
 R. 219) 92, 306, 343 
 
 McLeod, R. v., (1 C. C. C. 10) 509 
 McLeod, R. v., (6 C. C. C. 23) 344 
 McLeod, R. v., (12 C. <C. C. 73) 
 
 400, 411, 447 
 MoMahon, Ex parte, (48 J. P. 
 
 70) 177 
 
 McMichael, Ex parte, (7 C. C. 
 
 C. 549) 438 
 
 McMicken, Re, (20 C. C. C. 
 
 334) 90, 103, 199 
 
 McMullen, R. v., (9 C. C. C. 
 
 531) 362 
 
 McMurrer. Re, (No. 1), (18 C. 
 
 C. C. 41) 465 
 
 McMurrer, Re, (No. 2), (18 C. 
 
 C. C. 49) 163 
 
 McNaghten's Case, (10 Cl. & 
 
 F. 200) 46 
 
 McNellis v. Gartshore, (2 C. P. 
 
 464) 120 
 
 McNutt, R. v., (3 C. C. C. 184) 
 
 115, 266 
 McNutt, R. v., (4 C. C. C. 
 
 392) 323, 326 
 
 McNutt, R. v., (11 C. C. C. 
 
 26) 367 
 
 McNutt, R. v., (20 C. C. C. 
 
 174) 365. 502 
 
 McNutt, Re, (21 C. C. C. 157) 38 
 McRae, R. v., (2 C. C. C. 49) 
 
 85, 184 
 
 McRae, R. v., (28 O. R. 569) . 197 
 McShadden v. Lachance, (5 C. 
 
 O. C. 43) 338, 345 
 
 McTier, Re, (17 C. C. C. 80) . . 470 
 
 Napper, R. v., (1 Mood. 44).. 130 
 Nar Singh, R. v., (10 W. <L. R. 
 
 523, 14 C. C. C. 454, 45 C. L. 
 
 J. 296) 73, 401, 447 
 
 Nash's Case, (4 B. & Aid. 295) 465 
 Neal v. Devenish, [1894], 1 Q. 
 
 B. 544 . 152 
 
 PAGF. 
 
 Neiderstadt, R. v., (10 C. C. C. 
 
 292) 361 
 
 Neill v. McMillan, (25 U. C. R. 
 
 485) 100 
 
 Nelson, R. v.. (4 C. C. C. 461) 387 
 Nelson, R. v., (15 C. C. C. 10) 
 
 311, 484, 492 
 
 Nelson, R. v., (22 C. C. C. 301) 444 
 Nero, R. v., (23 C. C. C. 167) 367 
 Neuberger, R. v., (6 C. C. C. 
 
 142) 339 
 
 Neville v. Ross, (22 C. P. 487) 99 
 Nevills v. Ballard, (1 C. C. C. 
 
 434) 297 
 
 Newman v. Bendyshe, (10 A. & 
 
 E. 11) 134 
 
 Newton, R. v., (1 F. & F, 641) 207 
 Newton, R. v., (11 P. R. 98). 285 
 Nichol, R. v., (40 U. C. R. 76) 
 
 332 333 
 
 Nichols, R. v., (5 T. R. 281n) .' 517 
 Nicholson v. Booth, (57 L. J. 
 
 M. C. 43; 58 L. T. 187) ... 243 
 Nieol, R. v., (5 C. C. C. 31) .. 193 
 Northumberland, JJ., R. v., (71 
 
 J. P. 331) 516 
 
 Nottingham, R. v., (6 A. & E. 
 
 355) jQg 
 
 Nugent, "Ex parte, (i C. C. C. 
 
 126) 501 
 
 Nugent, R. v., (9 C. C. C. 1) . . 352 
 Noigent, R. v., (15 C. C. C. 
 
 277) 369 
 
 Nunn. R. v..(15 M. R. 288. 2 
 
 C. C. C. 429) 86, 113, 196 
 
 Nunn, R. v., (10 P. R. 395) 
 
 264, 284 
 Nunneley, R. v., (E. B. & E. 
 
 852) 83, 490 
 
 Nurse, R. v., (8 C. C. C. 173) 364 
 
 Oberland. R. v., (16 C. C. C. 
 
 244) 281 
 
 O'Brien, R. v., (10 C. C. C. 
 
 142) 154, 254 
 
 O'Brien, R. v., (5 Q. L. R. 
 
 161) 83 
 
 O'Brien v. Brabner, (78 L. T. 
 
 409) 144 
 
 O'Connor, R. v., (20 C. C. C. 
 
 75) 122, 368, 507 
 
 O'Connor v. Marjoribanks, (4M. 
 
 & G. 435) 542 
 
 Odell. R. v., (22 C. C. C. 39) 183 
 Offord, R. v., (5 C. & P. 168) . . 46 
 O'Gorman, R. v., (15 C. C. C. 
 
 173, 18 O. L. R. 427. 13 O. 
 
 W. R. 1189) 71, 88, 129 
 
 O'Hearon, R. v., (5 C. C. C. 
 
 187) 251 
 
 O'Hearon. R. v., (No. 2), (5 
 
 C. C. C. 531) 162, 477 
 
 O'Kelly v. Harvey, (15 Cox 
 
 435) 56 
 
 Oliphant v. Leslie, (24 U. C. R. 
 
 398) 99
 
 TABLE OF CASES. 
 
 XXV11 
 
 PAGE 
 Oliver, R. v., (30 L. J. M. C. 
 
 12) 422 
 
 Ollard v. Owens, (29 U. C. R. 
 
 515) 105 
 
 Olsen v. Cameron, (12 C. C. C. 
 
 193) 333 
 
 Omichund v. Barker, (Willes' 
 
 Rep. 549) 205 
 
 O'Neill, Ex parte, (9 C. C. C. 
 
 141) 363 
 
 O'Neill, Re, (19 C. C. C. 410) 470 
 O'Neil v. Attorney-General, (1 
 
 C. C. C. 303, 26 S. C. R. 122) 
 
 10, 390 
 Onley v. Gee, (30 L. J. M. C. 
 
 222) 135, 245 
 
 Ontario Public Health Act, Re, 
 
 (37 U. C. R. 214) 494 
 
 O'Regan, Ex parte, (16 C. C. 
 
 C. 110) 145 
 
 O'Regan, Ex parte, (17 C. C. 
 
 C. 160) 490 
 
 O'Reilly, q.t. v. Allan, (11 U. C. 
 
 R. 411) 105 
 
 Orr v. Spooner, (19 U. C. R. 
 
 601) 93 
 
 Orton, R. v., (14 Cox 226) 56 
 
 Osborn v. Gough, (3 B. & P. 
 
 551) 100 
 
 O'Shaughnessy, Ex parte, (8C. 
 
 C. C. 136) 423 
 
 O'Shaughnessy v. Montreal, (9 
 
 C. C. C. 44) 496 
 
 Osier, R. v., (32 U. C. R. 324) 288 
 Osmer, R. v., (5 East 308) ... 169 
 O'Sullivan v. Michus, (23 C. C. 
 
 C. 169) 370 
 
 Ouimet, R. v., (14 C. C. C. 
 
 136) 327, 377 
 
 Ouimet v., Bazin, (20 C. C. C. 
 
 458) 379 
 
 Owen, R. v., (4 C. & P. 236) . 43 
 Owen, R. v., (1 Moody C. C. 
 
 96) ' 59 
 
 Owen v. Moberley, (64 J. P. 
 
 88) 205 
 
 Oxford v. Sankey, (54 J. P. 
 
 564) 185 
 
 Oxfordshire. JJ., R. v., (18 L. 
 
 J. M. C. 222) 96 
 
 Oxfordshire, JJ., R. v., (4 Q. B. 
 
 177) 332 
 
 Pah-Oah-Pah-Ne-Capi, R. v., (4 
 
 216 
 
 C. C. C. 93) 
 Pahkala v. Hannuksala, (20 C. 
 
 C. C. 247) 330, 34f, 
 
 Pain, Ex parte, (5 B. & C. 251) 134 
 Paine, R. v.. (5 Mod. 163) 177, 188 
 Palmer v. Forsyth, (4 B. & C. 
 
 401) 520 
 
 Pamenter, R. v.. (12 Cox 177) 542 
 Panos. R. v., (No. 1), (14 C. 
 
 C. C. 291) 5, 377, 379 
 
 Panos, R. v., (No. 2), (14 C. 
 
 C. C. 408) 377, 379 
 
 Papillo v. R., (20 C. C. C. 329) 
 
 119, 
 
 Paquet v. Lavoie, (6 C. C. C. 
 
 314) 
 
 Paquin, R. v., (2 C. C. C. 134) 
 Pare v. Recorder of Montreal, 
 
 (10 C. C. C. 295) 
 
 Parke, Re, E. J., (3 C. C. C. 
 
 122) 
 
 Parker, R. v., (L. R. 1 C. C. R. 
 
 225) 
 
 Parker, In re, (19 O. R. 612) .. 
 Parker v. Etter, (33 N. S. R. 
 
 52) 
 
 Parker v. Parker, (32 C. P. 
 
 113) 
 
 Parkes v. Baker, (17 P. R. 
 
 345) 
 
 Parkyn v. Staples, (19 C. P. 
 
 240) 
 
 Parlby, R. v., (6 T. L. R. 37) 
 Patterson, R. v., (2 C. C. C. 
 
 339) 
 
 Paul, R. v., (6 C. & P. 323) 
 Paul, R. v., (19 C. C. C. 339) 
 Paul, R. v., Baptiste, (No. 2), 
 
 (20 C. C. C. 161) 119, . .238, 
 Paul, R. v., Baptiste, (No. 1), 
 
 20 C. C. C. 160) 
 
 Paynter. R. v., (26 L. J. M. C. 
 
 102; 7 E. & B. 328) ...96, 
 Pease v. Chaytor, (3 B. & S. 
 
 620) 
 
 Pearson, R. v., (L. R. 5 Q. B. 
 
 237, 22 L. T. 126) 
 
 Pedgrift v. Chevalier, (8 C. B. 
 
 N. S. 246) 
 
 Peerless, R. v., (1 Q. B. 143, 
 
 153) 74, 
 
 Pepper, R. v., (15 C. C. C. 314) 
 
 276, 
 
 Perhan, Ex parte, (5 H. & N. 
 
 30) 
 
 Perley, R. v., (25 N. B. R. 43) 
 Perrin v. Joyce, (6 U. C. O. S. 
 
 300) 
 
 Perry, R. v., (35 C. L. J. 174) 
 Perry v. Gibson, (1 A. & E. 48) 
 Pertella, R. v., (44 C. L. J. 791) 
 Petersky, R. v., (1 C. C. C. 91) 
 307, 
 
 Petrie, R. v.. (20 O. R. 317) 76, 
 Pettipas, (No. 1), R. v., (17 C. 
 
 C. C. 448) 
 
 Pettipas, (No. 2), R. v., (18 C. 
 
 C. C. 74) 
 
 Pfister, R. v., (19 C. C. C. 92) 
 Phelps v. Prew, (3 E. & B. 430) 
 Phillips, Ex parte, (24 N. B. R. 
 
 119) 
 
 Phillips, R. v., (11 C. C. C. 89) 
 
 111, 179, 
 
 Phillips v. Eyre, (L. R. 6 Q. B. 
 
 15) 
 
 Phinney, R. v., (No. 1), (6 C. 
 
 C. C. 469) 
 
 419 
 
 294 
 223 
 
 55 
 
 47
 
 XX VI 11 
 
 TABLE OF CASES. 
 
 PAGE 
 Phiimey, R. v., (7 C. C. C. 
 
 280) 421 
 
 Phipps, In re, (8 A. R. 77) .. 221 
 Phipps, Re, (11 W. R. 730) .. 466 
 Piaget, Re, (21 C. L. T. Occ. N. 
 
 536) 474 
 
 Picard, R. v., (21 C. C. C. 250) 
 
 129, 281 
 
 Pickard, R. v., (14 C. C. C. 33) 51 
 Pickering v. Willoughby, 
 
 [1907], 2 K. B. 296 243 
 
 Piggott v. French. (21 O. L. R. 
 
 87) 95 
 
 Pinney, R. v., (5 C. & P. 254- 
 
 261) 58 
 
 Pippy, Re, (14 C. C. C. 305) 236 
 Pisoni, R. v., (6 Terr. L. R. 
 
 238 ; 4 W. L. R. 527) 405 
 
 Placide Richard, Re, (12 C. C. 
 
 C. 204) ....361, 459, 460 
 
 Plante v. Cliche. (17 C. C. C. 43, 
 
 20 C. C. C. 186) . . .262, 263, 367 
 Plummer, R. v., [1902], 2 K. 
 
 B. 339 70 
 
 Plunkett, Re, (1 C. C. C. 365, 
 
 3 B. C. R. 484) 223, 509, 516 
 
 Pocock v. Moore, (Ry. & M. 
 
 321) 163 
 
 Pollard, R. v., (14 L. T. 599) 356 
 Pollard, R. v., (15 C. C. C. 74) 421 
 Polley v. Fordham, [1904], 2 
 
 K. B. 345; 90 L. T. 755 .. 97 
 Pope, R. v., (22 C. C. C. 327) 
 
 384, 451 
 Porte, R. v., (18 M. R. 222, 14 
 
 C. C. C. 238) 135, 274 
 
 Porter, Ex parte, (28 N. B. R. 
 
 587) 271 
 
 Powell, R. v., (7 C. & P. 640) 441 
 Power, R. v., (6 C. C. C. 378) 318 
 Power, R. v., (14 C. C. C. 264) 
 
 352, 368 
 
 Pratten, R. v., (6 T. R. 559) 283 
 Prestidge v. Woodman, (1 B. & 
 
 C. 13) 98 
 
 Preston, R. v., (9 C. C. C. 
 
 201) 65 
 
 Preston, R. v., (12 Q. B. 825) 151 
 Price, R. v., (12 Q. B. D. 247) 173 
 Price v. Manning, (42 Ch. D. 
 
 372) 546 
 
 Price v. Seeley, (10 Cl. & Fin. 
 
 28) 165 
 
 Pring v. Wyatt, (7 C. C. C. 60) 137 
 Proctor v. Parker. (3 O. C. C. 
 
 374, 12 M. R. 528) 155. 255. 278 
 Prokopase. R. v., (23 C. C. C. 
 
 189) 383 
 
 Prosiloski, R. v., (No. 2), (16 
 
 C. C. C. 139) 208 
 
 Queen's Case, The, (2 Brod. & 
 
 Bing. 284) 201 
 
 Quinn, R. v., (2 C. C. C. 153) 262 
 Quinn, R. v., (10 C. C. C. 412) 
 
 41. 452 
 
 PACK 
 
 Quick, R. v., (17 C. C. C. 61) 377 
 Quirk, Ex parte, (33 C. L. J. 
 
 405) 147 
 
 Quirk, R. v., (16 C. C. C. 391) 
 
 48. 369 
 
 Radford v. MacDonald, (18 A. 
 
 R. 167) 204 
 
 Raffles, R. v., (45 'L. J. M. C. 
 
 61) 351 
 
 Rahamat AH, R. v., (16 C. C. 
 
 C. 193) 400, 406 
 
 Ralph v. Hurrell, (44 L. J. M. 
 
 C. 145) 185 
 
 Rand, R. v., (22 C. C. C. 147) 79 
 Rand, R. v., (L. R. 1 Q. B. 
 
 230) 78 
 
 Randolph, R. v., (4 C. C. C. 
 
 165) 393, 427 
 
 Ratt v. Parkinson, (20 L. J. M. 
 
 C. 208) 295 
 
 Rattislaw, R. v., (5 Dowl. C. P. 
 
 539) 517 
 
 Rawding, R. v., (7 C. C. C. 436) 306 
 Rawlins v. Ellis, (16 M. & W. 
 
 172) 145 
 
 Ray worth, Ex parte, (34 N. B. 
 
 R. 74) 299 
 
 Reason, R. v., (6 T. R. 326) . 268 
 Recorder of Toronto, Re. (23 U. 
 
 C. R. 376) 103 
 
 Reddin, R. v.. (16 C. C. C. 163) 499 
 Redford v. Birley, (1 St. Tr. N. 
 
 S. 1071-1239) 56 
 
 Reece v. Miller, (8 Q. B. D. 
 
 626) 84 
 
 Reed v. King, (30 L. T. 290) 546 
 Reed v. Nutt, (24 Q. B. D. 
 
 669) 296 
 
 Reedy, R. v., (14 C. C. C. 256) 
 
 76, 366 
 
 Reid, R. v., (12 C. C. C. 352) 410 
 Reid, R. v., (14 C. C. C. 329) 80 
 Reid v. Maybee, (31 U. C. C. P. 
 
 384 168 
 
 Renaud, R. v.. (15 C. C. C. 246) 
 
 314, 498 
 Reno. R. v., (4 P. R. 281) 465. 468 
 
 Revel. R. v., (1 Str. 420) 240 
 
 Rice, Re, (20 N. S. R. 294) ... 291 
 Rice v. Howard, (16 Q. B. D. 
 
 681) 546 
 
 Richard. Re, Placide, (12 C. C. 
 
 C. 204) 361, 459, 460 
 
 Richards, R. v., (1 M. & Rob. 
 
 177) 130 
 
 Richards, R v., (20 L. J. Q. B. 
 
 351) 177 
 
 Richardson, R. v., (8 O. R. 651) 120 
 Richardson, R. v., (17 O. R. 
 
 729) 511 
 
 'Richardson, R. v., (20 O. R. 
 
 514) 271 
 
 Ridehaugh, R. v., (7 C. C. C. 
 
 340) 403, 410
 
 TABLE OF CASES. 
 
 XXIX 
 
 PAGE 
 
 Ridgway, R. v., (5 B. & Aid. 
 
 527) 268 
 
 Rivers, R. v., (7 C. & P. 177) 211 
 Roach, R. v., (23 C. C. C. 28) 286 
 Robert, R. v., (17 C. C. C. 194) 208 
 Roberts, Ex parte, (50 J. P. 
 
 567) 516 
 
 Roberts, R. v., (4 C. C. C. 253) 444 
 Roberts, R. v., (2 F. & F. 272) 465 
 Robicbaud v. T^eBlanc, (34 C. 
 
 L. J. 324) 83 
 
 Robidoux. R. v., (2 C. C. C. 19) 425 
 Robinet, R. v.. (2 C. C. C. 382. 
 
 16 P. R. 49) 511, 514 
 
 Robinson, R. v., (2 Burr. 799) 290 
 Robinson, R. v., (12 C. C. C. 
 
 447) 308, 481 
 
 Robinson, Re, (23 L. J. Q. B. 
 
 286) 200 
 
 Robinson v. Currey, (7 Q. B. D. 
 
 465) 437 
 
 Robinson v. District of Saanich, 
 
 (20 C. C. C. 241) 234 
 
 Robinson v. Lenaghan, (2 Ex. 
 
 333) 147 
 
 Roche, R. v., (Car. & Marsh 
 
 341) 208 
 
 Roche. R. v., (32 6. R. 20, 4 
 
 C. C. C. 64) 300 
 
 Roddam, R. v., (Cowp. 672).. 464 
 Roderick, R. v., (7 C. & P. 795) 64 
 Rodgers v. Richards, [1892] 1 
 
 Q. B. 555; 66 L. T. 261 266 
 
 Rodrigue, R. v., (13 C. C. C. 
 
 249) 159 
 
 Rogers, Ex parte, (7 C. C. C. 
 
 314) 272 
 
 Rogers, R. v., (6 C. C. C. 
 
 419 187 
 
 Rogers, R. v., (11 C. C. C. 257) 
 
 366, 369 
 Rogers v. Hassard, (2 A. R. 
 
 507) 120 
 
 Rogers v Hawken, (19 Cox 
 
 122) 217 
 
 Romp, R. v., (17 O. R. 567) .. 220 
 Rondeau, R. v., (9 C. C. C. 
 
 523) 348, 497 
 
 Roscommon, JJ., R. v., [1894] 
 
 2 Ir. 158 224 
 
 Rose, R. v., (18 Cox 717) 214 
 
 Rose, R. v., (3 D. & L. 359) .. 516 
 Ross, Ex parte, (1 C. C. C. 
 
 153) 493. 497 
 
 Ross, Re, (3 P. R. 301: 10 U. 
 
 C. L. J. 163) 460, 468, 480 
 
 Rossi, R. v., (17 C. C. C. 182) 217 
 Rouleau, R. v., (17 C. C. C. 
 
 281) 211 
 
 Rontledge v. Hislop, (29 L. J. 
 
 M. C. 90) 37 
 
 Roy, Ex parte, (12 C. C. C. 
 
 5533 ) 83 
 
 Roy,' R. V..' '(3 C.' c! ' C'. '472) .' .' 60 
 Royds, R. v.. (10 B. f*. R. 4071 217 
 Royston, Re. (ir C. C. C. 96) 468 
 
 PAGE 
 
 Rudd's Case, (1 Cowper 333) 233 
 Rudland, R. v., (14 C. C. C. 
 
 22) 460 
 
 Rudolph, R. v., (17 C. C. C. 
 
 206) 287, 444, 502, 506 
 
 Ruggles, Re, (5 C. C. C. 163) 494 
 Russell, R. v., (14 D. L. R. 
 
 792; 22 C. C. C. 131) 51 
 
 Russen v. "Lucas, (1 C. & P. 
 
 153) 163 
 
 Ruthven, Re, (2 C. C. C. 39) 233 
 Ryan, R. v., (9 C. C. C. 347; 
 
 9 O. L. R. 137) 216 
 
 Ryer v. Plows, In re, (46 U. C. 
 
 R. 206) 280, 348 
 
 Sabine. R. v., (8 C. C. C. 70) 376 
 Sadler, R. v., (2 Chit. 519).. 286 
 Saffery, Ex parte, (5 Ch. D. 
 
 365) 330, 337 
 
 Sainsbury, R. v., (4 T. R. 456) 
 
 85, 240 
 Salop, JJ.. R. v., (24 L. J. M. 
 
 C. 14; 4 E. & B. 257) 334 
 
 Salter, R. v., (2 Chit's. Rep. 
 
 109) 467 
 
 Sam Chak, (No. 1), R. v., (12 
 
 C. C. >C. 495) 419 
 
 Sams & Toronto, Re, (9 U. C. 
 
 R. 181) 349 
 
 Sanders, R. v., (L. R. 1 C. C. 
 
 R. 75) 161 
 
 Sander's Case, (1 Win. Saund. 
 
 262) 239 
 
 Sanderson, R. v., (12 O. R. 
 
 178) 303, 306 
 
 Sansome, R. v., (4 Cox 203) . . 213 
 Sarah Smith, R. v., (2 C. C. 
 
 C. 485) 508 
 
 Sarah Smith, R. v., (9 C. C. 
 
 C. 338) 393, 395 
 
 Sarault, Re, (9 C. C. C. 448) 
 
 47, 184, 195 
 Sattler, R. v., (Dears. & B. 
 
 525) 53 
 
 Saunders. R. v., [1899] 1 Q. 
 
 B. 490 416 
 
 Scaife, R. v., (9 Dowl. 553).. 220 
 Scattergood v. Sylvester, (19 L. 
 
 J. Q. B. 447) 439 
 
 Schofield, Ex parte, [1891] 2 
 
 Q. B. 429 356 
 
 Schofield and City of Toronto, 
 
 Re. (22 C. C. C. 93) 150 
 
 Schol v. Kay, (5 Allen, N. B. 
 
 244) 37 
 
 Scott, R. T., (20 O. R. 646) . . 209 
 Scott, R. v., (33 L. J. M. C. 
 
 15) 246 
 
 Scott v. Baring, (18 Cox. 128) 83 
 Scott v. Commissioners. (42 
 
 Am. St. Rep. 371) 542 
 
 Scott v. Reburn, (25 O. R.) 
 
 450) 98, 99 
 
 Scott v. Stansfield. (L. R. 3 
 
 Ex. 220) 90
 
 XXX 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Scribner, Ex parte, (32 N. B. 
 
 R. 175) 80 
 
 Scully, R. v. f (5 C. C. C. 1).. 109 
 Searle, R. v., (1 M. & Rob. 75) 46 
 Sears, R. v., (17 C. L. T. Occ. 
 
 N. 124) 415 
 
 See Wo, R. v., (16 C. C. C. 
 
 213) 392 
 
 Seeley, Ex parte, (13 C. C. C. 
 
 259) 88, 424 
 
 Seeley, Re, (14 . C. C. 270; 
 
 41 S. C. R. 5) .... 89, 406, 477 
 Seitz, Ex parte, (3 C. C. C. 
 
 127) 473 
 
 Selig, Ex parte, (17 C. C. C. 
 
 70) 440, 498 
 
 Sellars, R. v., (9 C. C. C. 153) 49 
 Sells v. Hoare, (3 Brod. & 
 
 Bing. 232) 201 
 
 Semayne's Case, (5 Rep. 92) 
 
 164, 165, 166 
 Seriesky, Ex parte, (21 C. C. C. 
 
 140) 488 
 
 Seward, R. v., (1 A. & E. 706) 68 
 Sewell v. Olive, (4 Allan N. B. 
 
 394) 94 
 
 Sharpe, R. v., (18 C. C. C. 132) 
 
 383, 423 
 
 Sharpe, R. v., (5 P. R. 135) 132 
 Shaw, R. v., (34 L. J. M C. 
 
 169) 152 
 
 Shaw, R. v., (23 U. C. R. 616) 281 
 Shebbeare, R. v., (1 Burr. 460) 231 
 Sheddon v. Patrick, (1 Mac- 
 queen, H. of L. C. 535) 490 
 
 Shepherd, R. v., (6 C. C C. 
 
 463) .... 116, 129, 409, 411, 412 
 Sheriff of Warwickshire, R. v., 
 
 (3 W. R. 164) 79 
 
 Shiel, R. v., (19 Cox. 507) .. 356 
 Shing, R. v., (17 C. C. C. 463; 
 
 20 M. R. 214) .393, 403, 427, 428 
 Siddal v. Gibson, (17 U. C R. 
 
 98) 110 
 
 Simington v. Colbourne, (4 C. 
 
 C C. 367) 336. 346 
 
 Simmonds, R. v., (16 C. C. C. 
 
 498) 362 
 
 Simmons, R. v., (14 C. C. C. 
 
 5) 363, 482 
 
 Simons, R. v., (6 C. & P. 540) 542 
 Simpson, Ex parte, (37 C. L. 
 
 J. 510) 146 
 
 Simpson, R. v., (10 Mod. 379) 141 
 Simpson v. Lock, (7 C. C. C. 
 
 294) 280. 344, 352 
 
 Simpson v. Proestler, (21 C. C. 
 
 C. 415) 377 
 
 Simpson v. Wells, (41 L. J. M. 
 
 C. 105) 83 
 
 Sinclair, R. v., (12 C. C. C. 20) 
 
 70, 415 
 Sinden v. Brown, (17 A. R. 
 
 173) 94, 99, 311 
 
 Sing. R. v., (6 C. C. C. 156) 253 
 
 PAGE 
 
 Sing Kee, Re, (5 C. C. C. 86) 
 
 253, 449, 494, 506 
 
 Sing Kee, R. v., (14 C. C. C. 
 
 420) 326 
 
 Siteman, R. v., (6 C. C. C. 224) 430 
 Skelton, R. v., (4 C. C. C. 467) 
 
 50, 211, 212 
 Skinner, R. v., (9 C. C. C. 558) 
 
 306, 468 
 Slaughenwhite, R. v., (9 C. C. 
 
 C. 53, 173; 35 S. C. R. 607) 
 
 50, 423 
 Slavin, R. v., (21 C. L. T. Occ. 
 
 N. 54, 7 C. C, C. 175) 50 
 
 Small v. Warr, (47 J. P. 20) 49 
 Smith, Ex parte, John, (2 D. 
 
 & R. 461) 286 
 
 Smith, Ex parte, (27 L. J. M. 
 
 C. 186) 465, 466 
 
 Smith, R. v., (2 C. C. C. 485) 274 
 Smith's Bail, Re Sarah, (6 C. 
 
 C. C. 416) 318 
 
 Smith (Sarah), R. v., (2 C. C. 
 
 C. 485) 508 
 
 Smith. Sarah, R. v., (9 C. C. 
 
 C. 338) 393, 395 
 
 Smith, R. v., (16 C. C. C. 425) 
 
 254, 262. 301 
 
 Smith, R. v., (19 C. C. C. 253) 450 
 Smith, R. v., (2 C. & K. 207) 221 
 Smith, R. v., (L. R. 10 Q. B. 
 
 604) 146, 147, 148 
 
 Smith, R. v., (31 O. R. 224) 284 
 Smith, R. v., (1 Stark. 242).. 211 
 
 Smith, R. v., (1 Stra. 126) 225 
 
 Smith, R. v., (8 T. R. 590) 268 
 
 Smith, R. v., (34 U. C. R. 552) 117 
 Smith, R. v., (38 U. C. R. 218, 
 
 227) 60 
 
 Smith v. Butler, (16 Q. B. D. 
 
 349) 354 
 
 Smith v. Evans, (13 C. P. 60) 137 
 Smith v. Moody, [1903] 1 K. 
 
 B. 56 ...265, 274, 275. 276, 277 
 Smith v. Simmons, (15 N. B. 
 
 R. 203) 101 
 
 Smitheman v. The King, (9 C. 
 
 C. C. 17 ; 35 S. C. R. 490) . . 130 
 Smithies R. v., (5 C. & P. 332) 542 
 Snelgrove, R. v., (12 C. C. C. 
 
 189) 38 
 
 Somers, R. v., (1 C. C. C. 46: 
 
 24 O. R. 244) 273, 277, 375 
 
 Somerset v. Wade, [1894] 1 Q. 
 
 B. 576 48 
 
 Sonier, Ex parte, (2 C. C. C. 
 
 121) 120, 122, 155 
 
 Soper, R. v., (3 B. & C. 857) 267 
 Soucie, R. v., (1 P. & B.; 17 
 
 N. B. R. 611) 212 
 
 Southey v. Nash, (7 C. & P. 
 
 632)" 206, 265 
 
 Southwick v. Hare, (15 P. R. 
 
 222) 102 
 
 Southwiek v. Hare, (24 O. R. 
 
 528) 168
 
 TABLE OF CASES. 
 
 XXXI 
 
 PAGE 
 South Staffordshire v. Stone, 
 
 (19 Q. B. D. 168) 352 
 
 Spain, R. v., (18 O. R. 385) 
 
 129, 277 
 Sparks, R. v., (12 C. C. C. 
 
 184) 112 
 
 Sparling, R. v., (21 W. R. 461; 
 
 60 L. J. M. C. 157) 356 
 
 Spates, R. v., (22 C. C. C. 
 
 269) 400 
 
 Speed, R. v., (17 C. C. C. 24) 
 
 122, 368 
 
 Spellman, R. v., (12 C. C. C. 
 
 99) 75, 76 
 
 Spooner, R. v., (4 C. C. C. 209) 
 
 444, 468, 502, 504 
 
 Sprague, Ex parte, (8 C. C. C. 
 
 109) 336, 345 
 
 Sproule, R. v., (14 O. R. 375) 
 
 76, 264 
 Sproule, In re, (12 S. G. R. 
 
 140) 404, 459, 469, 472 
 
 Sprung v. Anderson, (23 C. P. 
 
 152) 95, 98, 99 
 
 Squier v. Wilson, (15 C. P. 
 
 284) 9 
 
 St. Albans, JJ., R. v., (22 L. J. 
 
 M. C. 142) 489 
 
 St. Albans, JJ., R. v., (5 D. & 
 
 (R. 538 ; 3 B. & C. 698) 488 
 
 St. Botolph v. White Chapel, 
 
 (2 L. T. 507) 357 
 
 St. Clair, R. v., (3 C. C. C. 
 
 551 ; 27 A. R. 308) 
 
 396, 404, 416, 464, 472, 482 
 St. Denis, R. v., (8 P. R. 16) 472 
 St. Francois v. Continental H. 
 
 & L. Co., [1909 A. C. 194 .. 4 
 St. James v. St. Mary, (29 L. 
 
 J. M. C. 26) *56, S57 
 
 St. John, R. v., (9 C. & P. 40) 130 
 St. Katherine Dock Co., R. v., 
 
 (4 B. & Ad. 360) 108 
 
 St. Louis, R. v., (1 C. C. C. 
 
 141) 118. 223, 436 
 
 St. Maurice, R. v., (16 Q. B. 
 
 908) 120 
 
 St. Paul Covent-Garden, R. v., 
 
 (7 Q. B. 232; 14 L. J. M. 
 
 C. 109) 290 
 
 St. Pierre, R. v., (5 . C. C. 
 
 365) 495 
 
 St. Pierre, R. v., (19 C. C. C. 
 
 82) 205 
 
 Stadium, (The), R. v., (23 C. 
 
 C. C. 84) 379 
 
 Stafford, JJ., R. v., (3 A. & E. 
 
 425) 142 
 
 Staffordshire, JJ., R. v., (7 E. 
 
 & B. 935) 346 
 
 Stagg, Re, (No. 1), (20 C. C. 
 
 C. 306) 479 
 
 Stagg, Re, (No. 2), (20 C. C. 
 
 C. 310) 479 
 
 PAGE 
 Stamp v. Sweetland, (14 L. J. 
 
 M. C. 184) 92 
 
 Stanhope, R. v., (12 A. & E. 
 
 620) 316 
 
 Stanhope v. Thorsby, (L. R. 1 
 
 C. P. 420; 14 L. T. 332) ... 355 
 Stapylton, R. v., (8 Cox. 69) 184 
 Stark, R. v., (19 C. C. C. 67 ; 
 
 21 M. R. 345) 444 
 
 Stark v. Schuster, (14 M. R. 
 
 672) 5 
 
 Starkey, R. v., (6 M. R. 588) 495 
 Starkey, R. v., (7 M. R. 45) . . 495 
 Starkey, R. v., (7 M. R. 489) 
 
 COS, 495 
 Starr v. Heales, (4 R. & G. 
 
 N. S. R. 84) 286 
 
 Stather, Ex parte, (25 N. B. 
 
 R. 374) 477 
 
 Staverton v. Ashburton, (24 L. 
 
 J. M. C. 53) . . 74 
 
 Steele, R. v., (2 C. . C. 433) 
 
 81, 82 
 Steeves, Ex parte, (15 C. C. C. 
 
 160) 259 
 
 Stenhouse, Re, (21 C. C. C. 
 
 182) 455 
 
 Stephens, R. v., (35 L. J. Q. B. 
 
 251) 244 
 
 Stephens v. Stephens, (24 C. P. 
 
 424) 120 
 
 Stephenson, R. v., (20 C. C. C. 
 
 297) 251 
 
 Stephenson, R. v., (13 Q. B. 
 
 D. 331; 15 Cox. 679) 173 
 
 Stern, Re, (7 C. C. C. 191) 475 
 
 Sternaman, R. v., (1C. C. C. 
 
 1) 50 
 
 Stevens, R. v., (12 C. C. C. 20) 415 
 Stevens, R. v., (31 N. S. R. 
 
 125) 518 
 
 Steventon, iR. v., (1 C. & K. 
 
 55) 130 
 
 Stewart, R. v., (4 C. C. C. 131) 232 
 Stewart, R. v., (R. & R. 363) 59 
 Stewart v. Hazen, (2 Allan N. 
 
 B. R. 254) 95 
 
 VStimpson, R. v., (4 B. & S. 
 
 301) 82. 83 
 
 Stinson, R. v., (10 C. C. C. 16) 376 
 Stinson v. Guess, (1C. L. J. 
 
 19) 105 
 
 Stock, R. v., (8 A. & E. 405) 357 
 Stockton, R. v., (7 Q. B. 520) 73 
 Stokes, R. v., (3 C. & K. 185) 46 
 Stone, R. v., (1 East. 649) . . 152 
 Stone, R. v., (23 O. R. 46) . . 82 
 Stone v. Vallee, (18 C. C. C. 
 
 222) 163 
 
 Strang v. Gellatly, (8 C. C. C. 
 
 17) 109, 324. 505 
 
 Strauss, R. v., (5 B. C. R. 486 ; 
 
 1 C. C. C. 103) 283 
 
 Stripp, R. v., (7 Cox. 97; Dears. 
 
 648) 208, 213
 
 xxxn 
 
 TABLE OF CASES. 
 
 PAGE 
 Suck Sin, R. v., (18 C. C. C. 
 
 266; 20 M. R. 720) 80, 113 
 
 Suffolk, JJ. of, R. v., (18 Q. B. 
 
 416) 78 
 
 Suffolk, JJ., of, R. v., (21 L. 
 
 J. M. C. 169) 516 
 
 Sullivan, R. v., (16 Cox. 347) . . 214 
 Sunday Laws, In re, (25 C. L. 
 
 T. Occ. N. 77; 35 S. C. R. 
 
 581) 5 
 
 Sunderland, JJ., of, R. v., 
 
 [1901] 2 K. B. 357 78, 82 
 
 Superior v. City o'f Montreal, 
 
 (3 C. C. C. 379) 322 
 
 Surrey, JJ. of, R. v., (5 A. & 
 
 E. 701) 321 
 
 Swan, R. v., (8 . C. C. 86) 363 
 Sydsorff v. R., (11 Q. B. 245) 68 
 Symonds v. Kurtz, (16 Cox 
 
 726; 53 J. P. 727) .... 161, 312 
 Syred v. Carruthers, (E. B. & 
 
 E. 469; 27 L. J. M. C. 273) 
 
 353, 354 
 
 Tait, Ex parte, (10 C. C. C. 
 
 513) 74 
 
 Talbot's Bail, Re, (23 O. R. 65) 236 
 Tanghe, R. v., (8 C. C. C. 160) 499 
 Tamblyn, R. v., (25 O. R. 645) 69 
 Tano, R. v., (14 C. C. C. 440) 132 
 Taylor, R. v., (3 B. & P. 596) 131 
 Taylor, R. v., (5 C. C. C. 89) 
 
 64, 137, 138 
 
 Taylor, R. v., (22 O. C. C. 234) 451 
 Taylor, R. v., (13 Cox. 77) . .46, 213 
 Taylor, R. v., (6 Terr. L. R. 
 
 238 ; 4 W. L. R. 527) 405 
 
 Taylor, R. v., (8 U. C. R. 257) 83 
 Taylor v. Clemson, (11 Cl. & 
 
 Fin. 610) 151 
 
 Taylor v. Fen wick, (7 T. R. 
 
 635) 100 
 
 Taylor v. McCullough, (8 O. R. 
 
 309) 37 
 
 Taylor v. Oram, (31 L. J. M. 
 
 C. 252) 351, 354 
 
 Taylor V. Scott, (30 O. R. 475) 480 
 Teasdale, R. v., (16 C. C. C. 
 
 53) 480 
 
 T. Eaton Co., R. v., (2 C. C. 
 
 C. 352) 150 
 
 Tebo. R. v., (1 Terr. L. R. 196) 301 
 Teed. Ex parte, (21 C. C. C. 
 
 255) 127 
 
 Tessier v. Desnoyers, (Q. R. 12 
 
 S. C. 35) 111 
 
 Thaw. Re, (No. 2), (22 C. C. 
 
 O 3) 40 
 
 Thaw, Re', ' ( No. ' 3 ) ', ' (22 ' C. ' C. 
 
 C. 8) 464 
 
 Thomas, R. v., (7 C, & P. 817) 
 
 45, 20S 
 
 Thomas, R. v.. (4 M. & S. 442) 491 
 
 PAGE 
 
 Thomas Lynch, R. v., (12 C. C. 
 
 C. 142) 74 
 
 Thomas v. Churton, (2 B. & 
 
 S. 475) 173 
 
 Thomas v. Van Os, (2 Q. B. 
 
 448) 246 
 
 Thompson, R. v., (15 C. C. C. 
 
 162) 119 
 
 Thompson, R. v., (22 C. C. C. 
 
 78) 374 
 
 Thompson, R. v., [1893] 2 Q. 
 
 B. 12; 17 Cox. 641 
 
 214, 215, 218 
 Thompson, Re, (30 L. J. M. C. 
 
 19) 198 
 
 Thompson v. Coulter, (34 ,S. C. 
 
 R. 261) 204 
 
 Thompson v. Desnoyers, (3 C. 
 
 C. C. 68) 109, 115 
 
 Thompson v. Williamson, (16 P. 
 
 R. 368) 102 
 
 Thomson v. Wishart, (19 M. R. 
 
 340; 16 C. C. C. 446) 36 
 
 Thorne v. Jackson, (3 C. B. 
 
 661) 129 
 
 Thorpe v. Oliver, (20 U. C. R. 
 
 264) 94 
 
 Thorpe v. Priestnall. [1897] (1 
 
 Q. B. 159 123 
 
 Tierney v. Choquet, (9 Q. P. R. 
 
 229) 497, 514 
 
 Tinson, Ex parte, (L. R. 5 Ex. 
 
 257) 481, 492 
 
 Tisdale, R. v., (20 U. C. R. 
 
 272) 106, 435 
 
 Todd, R. v., (4 . C. C. 514; 
 
 13 M. R. 364) 216, 219 
 
 Tompkins, Ex parte, (12 C. C. 
 
 C. 552) 149, 151, 255, 360 
 
 Toronto Ry. Co., R. v., (2 C. 
 
 C. C. 471) 150, 256 
 
 Torpey, R. v., (12 Cox. 45) .. 52 
 Totness, R. v., (18 L. J. M. C. 
 
 46) 73 
 
 Townsend, R. v., (5 C. C. C. 
 
 143) 323 
 
 Townsend, R. v., (No. 2), (11 
 
 O. C. C. 115; 12 C. C. C. 
 
 509) 371 
 
 Townsend, R. v., (No. 3), (11 
 
 C. C. C. 153) 300 
 
 Townsend, R. v., (No. 5). (13 
 
 C. C. C. 209) 514 
 
 Townsend v. Beckwith, (14 C. 
 
 C. iC. 353) 371 
 
 Townshend, R. v., (No. 2), (6 
 
 C. C. C. 519) 324 
 
 Townshend, R. v., (17 C. C. 
 
 C. 94) 74 
 
 Townshend v. Read, (4 L. T. 
 
 447) 357 
 
 Toy Moon. R. v., (19 C. C. C. 
 
 33; 21 M. R. 527) 
 
 244, 291, 505, 507
 
 TABLE OF CASES. 
 
 XXX111 
 
 PAGE 
 Traves, Re, (10 C. C. C. 63) 
 
 494, 497 
 Traynor, R. v., (4 C. C. C. 410) 
 
 154, 181 
 Treanor, R. v., (14 C. C. C. 
 
 443) 51 
 
 Tregartheu, R. v., (5 B. & A. 
 
 678) 319 
 
 Treharne, R. v., (1 Moo. C. C. 
 
 298) 126, 130 
 
 Trelawney, R. v., (1 T. R. 222) 134 
 Tremblay, Ex parte, (6 C. C. 
 
 C. 147) 476, 480 
 
 Tremblay v. Bernier, (21 S. C. 
 
 R. 309) 37 
 
 Tremblay v. City of Quebec, (16 
 
 C. C. C. 487) 378 
 
 Trepanier, R. v., (4 C. C. C. 
 
 259) 419 
 
 Trepanier, R. v., (19 C. C. C. 
 
 290) 220 
 
 Trepanier, In re, (12 S. C. R. 
 
 Ill) 458, 507 
 
 Trevane, R. v., (6 C. C. C. 125 ; 
 
 4 O. L. R. 875) 188 
 
 Troop, R. v., (2 C. C. C. 22) .. 547 
 Troop (The), R. v., (29 S. C. 
 
 R. 673) 502, 508 
 
 Trottier, R. v., (22 C. C. C. 
 
 102) 329, 333, 336 
 
 Truelove, R. v., (14 Cox. 408) 256 
 Truelove, R. v., (5 Q. B. D. 
 
 336) 151, 334 
 
 Tucker. R. v., (10 C. C. C. 217) 337 
 Tupper v. Murphy, (3 R. & G. 
 
 N. S. 173) 79 
 
 Turnbull, R. v., (15 C. C. C. 1) 353 
 Turner, R. v., (5 M. & S. 206) 253 
 Turner, R. v., (15 East. 570) 236 
 Tutty, R. v., (9 C. C. C. 544) 216 
 Tyrrell v. Flannagan, [1901] 2 
 Q. B. Ir. 423 356 
 
 Uncles, R. v., (I. R. 8 C. L. 
 
 50. 58) 214 
 
 Union Colliery v. The Queen, (4 
 
 C. C. C. 400; 31 S. C. R. 81) 
 
 42, 150 
 United States v. Browne, (No. 
 
 2), (11 C. C. C, 167) .. 464. 481 
 United .States v. Gaynor, (9 C. 
 
 C. C. 205) 467, 478 
 
 United States v. Webber, (No. 
 
 1), (20 C. C. C. 1) 470 
 
 United States v. Webber, (No. 
 
 2), (20 C. C. C. 6) 470 
 
 United States v. Weiss, (8 C. 
 
 C. C. 62) 475, 478 
 
 University of Cambridge, R. v., 
 
 (8 Mod. 154) 153 
 
 Upper v. McFarland, (5 U. C. 
 
 R. 101) 90 
 
 Upton v. Brown, (21 C. C. C. 
 
 190) 38, 2r,i> 
 
 PAGE 
 
 Urquhart, R. v., (4 C. C. C. 
 256) 326, 507 
 
 Vachon, R. v., (3 C. C. C. 558) 49 
 Valin v. Langlois, (3 S. C. R. 
 
 D 3 
 
 Vamplew, R. v., (3 F. & F. 520) 44 
 Van Buskirk, Ex parte, (13 C. 
 
 C. C. 234) 82, 269 
 
 Vancini, Re, (No. 2), (8 C. C. 
 
 C. 228; 34 S. C. R. 621) . .88, 403 
 Van Meter, R. v., (11 C. C. C. 
 
 207) 543 
 
 Vantassel, (No. 1), R. v., (5 C. 
 
 <3. C. 128) 272, 300 
 
 Vantassel, (No. 2), R. v., (5 C. 
 
 C. C. 133) 272, 300 
 
 Vaughan, R. v., (Holt. 689).. 206 
 Vaughan. R. v., (13 St. Trials, 
 
 485) : 72 
 
 Vaughan, Ex parte, (L. R. 2 Q. 
 
 B. 114) 84 
 
 Vaughton v. Bradshaw, (9 C. B. 
 
 N. S. 103 ; 30 L. J. C. P. 93) 296 
 
 Vaux's Case, (4 Rep. 44) 59 
 
 Venables v. Hardman, (1 E. & 
 
 E. 79) 358 
 
 Venot, R. v., (6 C. C. C. 209) 469 
 Verdon, R. v., (8 C. C. C. 352) 372 
 Verral, R. v., (6 C. C. C. 325) 
 
 187, 193 
 
 Viau, R. v., (Q. R. 7 Q. B. 362) 219 
 Vincent, R. v., (22 C. C. C. 98) 264 
 Vincent, R. v., (9 C. & P. 91) 56 
 Vrooman, R. v., (3 M. R. 509) 153 
 
 Waite, R. v., [1892] 2 Q. B. 
 
 600 44 
 
 Wakefield v. West Midland & 
 
 G. Ry., (10 Cox 162) 82 
 
 Walden, R. v., (9 Q. B. 76) . . 167 
 Waldon, R. v., (22 C. C. C. 122, 
 
 405) 375, 379 
 
 Walkem. R. v., (14 C. C. C. 
 
 122) 62, 419 
 
 Walker, R. v., (12 C. C. C. 197) 548 
 Walker, R. v., (13 O. R. 83) . . 121 
 Walker, R. v., (L. R. 10 Q. B. 
 
 355) 290 
 
 Walker, R. v., (2 M. & R. 446) 39 
 Walker v. Matthews, (8 Q. B. 
 
 D. 109) 440 
 
 Wallace, Ex parte, (19 C. L. 
 
 T. Occ. N. 406) 146 
 
 Wallace. Ex parte, (26 N. B. 
 
 R. 593) 80 
 
 Wallace, R. v., (4 O. R. 127) 
 
 281, 494 
 Walsh, R. v., (2 O. R. 206) . . 
 
 270, 281. 343 
 
 Walsh. R. v., (22 C. C. C. 145) 376 
 Walsh & lyamont, R. v., (8 C. 
 
 C. C. 101) 409 
 
 Walton. R. v.. (10 C. C. C. 269) 
 
 428, 468
 
 XXXIV 
 
 TABLE OF CASES. 
 
 PAGE 
 Wambolt, R. v., (14 C. C. C. 
 
 160) 243 
 
 Warburton, R. v., (L. R. 1 C. 
 
 C. R. 274) 69 
 
 Ward, R. v., (3 Cox. 279) .. 151 
 Warilow, R. v., (14 C. C. C. 
 
 117) 260 
 
 Warner, R. v., (Russ. on Cr. 
 
 7th ed. 2174 n.) 215 
 
 Washington, R. v., (46 U. C. 
 
 R. 221) 279, 342 
 
 Wason, Ex parte, (L. R. 4 Q. 
 
 B. 573) 223 
 
 Waters, R. v., (12 Cox. 390) 
 
 182, 200, 222 
 
 Watier, R. v., (17 C. C. C. 9) 51 
 Watkins, Ex parte, (26 J. P. 
 
 71) 346 
 
 Watkins v. Major, (.L. R. 10 C. 
 
 P. 662; 44 L. J. M. C. 164; 
 
 33 L. T. R. 352) 48, 83 
 
 Watson, R. v., (48 J. P. 149) 358 
 Watson's Case, (Leonard), (9 
 
 A. & E. 731) 466, 468 
 
 Watts, Re, (5 C. C. C. 538) 
 
 234, 475 
 Watts, R. v., (33 L. J. M. C. 
 
 63) 154, 260 
 
 Waye v. Thompson, (15 Q. B. 
 
 D. 342) 246 
 
 Weatheral, R. v., (18 C. C. C. 
 
 372) 376 
 
 Weatherall, Re, (1 O. L. R. 
 
 542) 480, 485 
 
 Webb, R. v., (11 Cox. 133).. 538 
 Webb v. Spears, (15 P. R. 232) 97 
 Webber, Re, (19 C. C. C. 515) 470 
 Webster, R. v., (3 T. R. 388) 102 
 Wehlan, R. v., (45 U. C. R. 
 
 396) 348, 512 
 
 Weir, R. v., (1 B. & C. 288) . . 310 
 Weir, R. v., (No. 5), (3 C. C. 
 
 C. 499) 133, 136 
 
 Weiss, R. v., (No. 1), 21 C. C. 
 
 C. 438) 40, 472, 473 
 
 Weiss, R. v., (No. 2), (22 C. 
 
 C. C. 42) 40. 41, 159, 495 
 
 Welch, Ex parte, (2 C. C. C. 
 
 35) 317 
 
 Welch v. Richards. (Barnes 
 
 468) 225 
 
 Weller v. Toke, (9 East. 364) 98 
 Wellman, R. v., (14 C. C. C. 
 
 335) 80. 363 
 
 Wells R. v., (18 C. C. C. 377) 37fi 
 Wells v. Abrahams, (L. R. 7 
 
 Q. B. 554) 37 
 
 Wells v. Fletcher. (5 C. & P. 
 
 12) 543 
 
 Welsh, Ex parte, (2 C. C. C. 35) 223 
 Wemyss v. Hopkins, (L. R. 10 
 
 Q. B. 378) 39. 40 
 
 West. R. v., [18981 1 Q. B. 
 
 174 423 
 
 Wpst Hough ton. R. v., (."> Q. 
 
 R. 300) 332 
 
 PAGE 
 
 West Riding Yorkshire, JJ. of, 
 
 R. v., (3 T. R. 776) 334, 340 
 
 West Riding Yorkshire, JJ. of, 
 
 R. v., (7 B. & C. 678) .... 334 
 Westmore v. Paine, [1891] 1 Q. 
 
 B. 482 351 
 
 Weston v. Fournier, (14 East. 
 
 491) 97 
 
 Whalen, R. v., (4 C. C. C. 277) 274 
 Whalen, Ex parte, (29 N. B. 
 
 R. 146) 272 
 
 Whately, R. v., (4 M. & Ry. 
 
 431) 103 
 
 Wheatman, R. v., (1 Doug. 345) 
 
 117, 143, 266 
 Whiffin, R. T., (4 C. C. C. 141) 
 
 271, 279, 506, 508 
 Whiff en v. JJ. of Mialing, 
 
 [1892] 1 Q. B. 362 151 
 
 Whistnant, R. v., (20 C. C. C. 
 
 322) 204 
 
 Whitaker, R. v., (24 O. R. 437) 515 
 White, R. v., (4 C. C. C. 430; 
 
 31 S. C. R. 383) . . .185, 267, 459 
 White, R. v., (15 C. C. C. 30) 219 
 White, R. v., (19 C. C. C. 156) 329 
 White, R. v., (21 C. P. 354) .. 284 
 
 White, R. v., (43 J. P.) 246 
 
 White v. Feast, (L. R. 7 Q. B. 
 
 352) 84 
 
 White v. Hamm, (36 N. B. R. 
 
 237) 100 
 
 White v. Leek, (18 C. C. C. 
 
 337) 302, 369 
 
 White v. Spettigue, (13 M. & 
 
 W. 603) 439 
 
 Whiteside, R. v., (8 C. C. C. 
 
 478) 247, 478 
 
 Whiting, R. v., (14 C. C. C. 
 
 414) 267 
 
 Whittier v. Diblee, (15 N. B. 
 
 R. 243) 93 
 
 Whittle v. Frankland. (31 L. J. 
 
 M. C. 81; 2 B. & S. 49) ... ' 
 
 266, 2,90 
 
 Wickham v. Lee, (12 Q. B. 521) S3 
 Wilcox v. Gotfrey, (26 L. T. 
 
 N. S. 481) 205 
 
 Wiles v. Cooper, (3 A. & E. 
 
 524) 143 
 
 Wilkes, R. v., (4 Burr. 2539) 241 
 Wilkins, R. v., (17 C. C. C. 20) 26., 
 Wilkins, R. v., [1907] 2 K. B. 
 
 3RO 319 
 
 Wilkins v. Wright. (2 Cr. & M. 
 
 191) 240 
 
 Wilkinson, R. v.. (8 C. & P. 
 
 662) 213 
 
 Williams, Ex parte, (13 Price 
 
 623) 220 
 
 Williams, In re, (21 L. J. M. 
 
 C. 46) 147 
 
 Williams, R. v., (8 M. R. 342) 507 
 Williams, R. v., (10 C. C. C. 
 
 330) 446 
 
 Willinms. R. v., (28 O. R. 583) 541
 
 TABLE OF CASES. 
 
 XXXV 
 
 PAGE 
 Williams, R. v., (21 L. J. M. C. 
 
 150) 266 
 
 Williams, R. v., (37 U. C. R. 
 
 540) 135, 282 
 
 Williamson, R. v., (13 C. C. C. 
 
 195) 348 
 
 Wilson, Ex parte, (14 C. C. C. 
 
 32) 282 
 
 Wilson, Ex parte, (15 C. C. C. 
 
 264) 80, 371 
 
 Wilson, R. v., (21 C. C. C. 105) 49 
 Wilson, R. v., (Dears. & B. 157) 223 
 Wilson, R. v., (35 N. B. R.461) 485 
 Wilson v. Rastall, (4 T. R. 757) 241 
 Wilson v. Stewart, (3 B. & S. 
 
 913) 244 
 
 Wiltshire, JJ. of, R. v. (8 L. 
 
 T. 242) 256 
 
 Windham, R. v., (1 Cowp. 377) 108 
 Winegarner, R. v., (17 O. R. 
 
 208) 173 
 
 Wing v. Sicotte, (10 C. C. C. 
 
 171) 362, 497 
 
 Winkworth, R. v., (4 C. & P. 
 
 444) 541 
 
 Winsor, R. v., (10 Cox . C. 
 
 276) 144 
 
 Win ton, R. v., (5 T. R. 89) ... 466 
 Winwick. R. v. Inhabitants of, 
 
 (8 T. R. 455) 157 
 
 Wipper. R. v., (5 C. C. C. 17) 2~63 
 Wirth, R. v., (1 C. C. C. 231) 398 
 Wise v. Denning, [1902] 1 K. 
 
 B. 175 319 
 
 Wishart, R. v., (18 C. C. C. 
 
 146) 475 
 
 Wollez, R. v., (8 Cox 337) . . 441 
 Wong On, R. v., (No. 1), (8 
 
 C. C. C. 342) 544 
 
 Wong On, R. v., (No. 2), (8 
 
 C. C. C. 343) 544 
 
 "Wood, R. v., (5 E. & B. 49) .. 489 
 
 Woods, R. v., (19 C. L. T. Occ. 
 
 X. 18) 415 
 
 Woodcock's Case, (Leach C. 
 
 500) 543 
 
 Woodhall, Ex parte, (20 Q. B. 
 
 D. 832) 480 
 
 PAGE 
 
 Woodhouse v. Woods, (29 L. J. 
 
 M. C. 149) 352 
 
 Woodlock v. Dickie, (6 R. & G. 
 
 N. S. R. 86; 6 C. L. T. Occ. 
 
 N. 142) 286 
 
 Woodroof, R. v., (20 C. C. C. 
 
 17) 79, 208 
 
 Woodstock Electric Light Co., 
 
 Ex parte, (4 C. C. C. 107) .. 150 
 Woodward, R. v., (1 Mood. C. 
 
 C. 323) 130 
 
 Wood worth, R. v., (21 C. C. C. 
 
 187) 485 
 
 Worthington v. Jeffries, (L. R. 
 
 10 C. P. 379) 113 
 
 Wright, R. v., (10 C. C. C. 461) 
 
 425, 477 
 
 Wright v. Arnold, (6 M. R. 1) 112 
 Wright v. Court, (4 B. & C. 
 
 596) 163, 170 
 
 Wrottesley, R. v., (1 B. & Ad. 
 
 648) 83 
 
 Wyatt, R. v., (2 Ld. Ray. 1189) 
 
 163, 170, 310 
 Wyman, Ex parte, (5 C. C. C. 
 
 58) 260 
 
 Wyndham, R. v., (1 Stra. 4) 233 
 
 Yeadon, R. v., (31 L. J. M. C. 
 
 70) 422 
 
 Ying Foy, Re, (15 C. C. C. 14) 197 
 Yorkshire, JJ. of, R. v., (1 A. 
 
 & E. 563) 488 
 
 Young, R. v., (4 C. C. C. 580) 
 
 236, 430 
 
 Young, R. v., (12 C. C. C. 109) 275 
 Young, R. v., (5 O. R. 184a) . . 281 
 Young and Pitts, R. v., (1 Burr. 
 
 556) 102 
 
 Young v. Higgon, (6 M. & W. 
 
 49) 98 
 
 Young v. Saylor, (23 O. R. 513 ; 
 
 20 A. R. 645) 249 
 
 Zickrick, R. v., (11 M. R. 452; 
 5 C. C. C. 380) ...112, 153, 521
 
 Canadian Criminal Procedure. 
 
 CHAPTER 1. 
 INTRODUCTION. 
 
 Canada has one advantage over the Mother Country in this, 
 that its criminal laws have been codified. Instead of the student, 
 the lawyer, the Judges, or the Magistrates, having to look through 
 a number of statutes to find the law relating to certain crimes, or 
 to ascertain the mode of procedure in criminal matters, they now 
 find it all in the Criminal Code, chapter 146 of the Revised 
 Statutes of Canada (1906), and in the Acts since passed amending 
 the Code. 
 
 A bill entitled an "Act respecting the Criminal Law" was 
 introduced by Sir John Thompson, then Minister of Justice, in the 
 House of Commons in the year 1892. On the 2nd April, 1892, 
 Sir John Thompson moved the second reading of the Bill. The 
 Act was given the Royal assent on the 9th July, 1892, and came 
 into force on the first day of July, 1893, as provided in the second 
 section of the Act. 
 
 When moving the second reading of the Bill, Sir John Thomp- 
 son stated that it was founded on the English Draft Code, pre- 
 pared by the Royal Commission in 1880, on Stephens' Digest of 
 the Criminal Law (edition 1887), Burbidge's Digest of the Can- 
 adian Criminal Law (1889), and the Canadian Statutory Law. 
 England had been trying, for sixty years up to that time, to reduce 
 her criminal law into a Code, but it had not then, and has not yet, 
 been perfected by statute. 
 
 Sir John also said, " The present bill aims at a codification of 
 both Common and Statutory law, but it does not aim at completely 
 superseding the Common law, while it does aim at completely 
 superseding the Statutory law relating to crimes." 
 
 " The Common law will still exist and be referred to ; and in 
 that- respect the Code will have the elasticity so much desired by 
 those who are opposed to codification on general principles."
 
 2 THE CRIMINAL CODE OF CANADA. 
 
 The use of the words " malice " and " maliciously " is discon- 
 tinued. The term " larceny " is abolished, and the term " theft " 
 adopted instead. The distinction between " felonies " and " mis- 
 demeanours " is abolished. In the Code all crimes are referred to 
 as " indictable offences/' or " offences punishable on summary con- 
 viction." 
 
 After the bill was read a second time, on motion of Sir John 
 Thompson, it was referred to a special committee of members of 
 both Houses of Parliament. The writer had the honour of being a 
 member of the Joint Committee, and recollects well the careful 
 consideration that the Committee gave to the Bill. 
 
 Both in Committee and in the House, Sir John Thompson 
 exhibited a wonderful mastery of the subject and an intimate know- 
 ledge of every detail, and it was no doubt in a large measure due 
 to this fact that the Bill passed with so little controversy. 
 
 " The Criminal Code " of Canada will always remain as a 
 monument to one of the ablest men who ever sat in the House of 
 Commons of Canada. 
 
 Full credit should also be given to the then Deputy Minister of 
 Justice, the late Mr. Justice Sedgewick, and to the then officers of 
 the Department of Justice who lent their valuable aid in drafting 
 the Code. Only those who, before the passing of this Act, were 
 engaged in practice before the Criminal Courts, or who sat upon 
 the bench as Judges, Magistrates or Justices of the Peace, can 
 fully recognize the boon that was conferred when the Criminal 
 Law and Criminal Procedure were all included in one statutory 
 enactment. 
 
 As previously stated, the Code came into force on the first day 
 of July, 1893. Since then the Code has been amended from time 
 to time, and was revised in 1906, at the time of the revision of the 
 other Dominion Statutes, and it has been amended several times 
 since. 
 
 These subsequent amendments will be noted in their proper 
 places in this edition. 
 
 Since the revision of the Code in 1906, no work relating to the 
 rights, powers and duties of Justices of the Peace and Magistrates 
 has been published in Canada, and it has been suggested to me that 
 the time is ripe for such a publication. I have undertaken the 
 work with considerable trepidation, since, while my desire will be 
 to make the contents of this book easily understood by those for 
 whom it is primarily intended, viz., Justices of the Peace and
 
 CRIMINAL LAW IN CANADA. 3 
 
 Magistrates, yet at the same time I cannot overlook the fact that 
 the work to be fully efficient must recommend itself to the legal pro- 
 fession and to those who may require to use it for reference, and 
 must therefore be more or less technical in statement. The work, 
 like others of a similar nature, will be founded upon the Criminal 
 Code, and is really a compilation of that statute so far as relates 
 to procedure before Magistrates and Justices of the Peace. 
 
 CRIMINAL LAW IN CANADA. 
 
 By section 91 of the British North America Act, 1867, the 
 exclusive legislative authority of the Parliament of Canada extends 
 to all matters coming within certain classes of subjects enumerated 
 therein, amongst them being (27) "The criminal law, except the 
 constitution of the Courts of criminal jurisdiction, but including 
 the procedure in criminal matters." 
 
 By section 92 of the same Act, it is provided that " In each 
 Province, the legislature may exclusively make laws in relation to 
 matters coming within the classes of subjects next hereinafter 
 enumerated." 
 
 Amongst these subjects are, " (14) The administration of jus- 
 tice in the Province, including the constitution, maintenance and 
 organizaation of provincial Courts, both of civil and of criminal 
 jurisdiction, and including procedure in civil matters in these 
 Courts." 
 
 It will thus be seen that to the Parliament of Canada belongs 
 the exclusive right to enact criminal laws, and laws relating to 
 criminal procedure. 
 
 The constitution, maintenance and organization of the Courts 
 before whom are to be tried those who are charged with crimes are 
 vested in the legislature of each Province. 
 
 By section 96 of the B. N. A. Act, the Judges of the Superior, 
 District and County Courts in each Province, except those of the 
 Courts of Probate in Nova Scotia and New Brunswick, shall be 
 appointed by the Governor- General.- The salaries of all these 
 Judges are fixed and paid by the Parliament of Canada. 
 
 And by section 101 of the B. N. A. Act, " The Parliament of 
 Canada may, notwithstanding anything in this Act, from time to 
 time provide for the constitution, maintenance and organization of 
 a General Court of Appeal for Canada, and for the establishment 
 of any additional Courts ior the better administration of the laws 
 of Canada." See Valin v. Langlois, 3 S. C. K. 1.
 
 4 CRIMINAL LAW IN CANADA. 
 
 By virtue of this enactment, Parliament may create new Courts 
 of criminal jurisdiction and appoint judicial officers, notwithstand- 
 ing that " the constitution, maintenance and organization of pro- 
 vincial Courts of criminal jurisdiction," is declared by section 92 
 to be exclusively within provincial jurisdiction. The only instance 
 in which advantage has been taken of this power is in the appoint- 
 ment of stipendiary Magistrates and the establishment of their 
 Courts along and in the vicinity of public works, such as railways. 
 
 These provisions of the British North America Act have often 
 been the subject of controversy, and decisions in Canadian Courts 
 and in the Privy Council. 
 
 In the case of the Citizens Insurance Co. v. Parsons, (1881) 
 1 Cartwright 265, 7 App. Gas. 96, both sections 91 and 92 of the 
 B. N. A. Act were much discussed. It was pointed out by the 
 Privy Council that no rule can be laid down to define the actual 
 limits of the various powers given to Parliament and the Legisla- 
 tures respectively. 
 
 In the Queen v. Holland, 4 C. C. C. at p. 79, Judge Drake 
 says : " The powers overlap, and in some instances the Provinces can 
 legislate until the subject matter is dealt with as a whole by the 
 Dominion. When this takes place, provincial legislation has to 
 give way to the Dominion." 
 
 See St. Francois v. Continental H. & L. Co. C. E., [1909] 
 
 A. C. 194. 
 
 The conflict of powers likely to arise under sees. 91 and 92 of 
 
 B. N. A. Act was also fully discussed by the Privy Council in the 
 case of Attorney -General of Ontario v. Attorney-General of Can- 
 ada, [1896] A. C. 348. See also Attorney -General of Manitoba v. 
 Manitoba License Holders' Association, [1902] A. C. 73. 
 
 In the case of the Attorney-General of Ontario v. Hamilton 
 Street Railway Co., [1903] A. C. 524, 7 C. C. C. 326, it was 
 decided by the Privy Council that the " Ontario Lord's Day Act " 
 is ultra vires of the Ontario Legislature, as the subject matter there- 
 of comes under the classification of "Criminal Law," which by 
 the B. N. A. Act is under the exclusive legislative authority of the 
 Parliament of Canada. 
 
 In delivering the judgment of the Court, the Lord Chancellor 
 said : " The reservation of the criminal law for the Dominion of 
 Canada is given in clear and intelligible words which must be con- 
 sidered according to their natural and ordinary signification.''
 
 APPOINTMENT OF MAGISTRATES. 5 
 
 And see Ex parte Green, 35 N. B. R. 137, McLaughlin v. 'Record- 
 ers' Court of Montreal, 4 Q. P. B. 304, In re Sunday Laws, 35 
 C. L. T. Occ. N. 77, 35 S. C. E. 581, Stark v. Schuster, 14 Man. 
 E. 672, R. v. Panos, (1909) 14 C. C. C. 391. We have thus ascer- 
 tained that, while the Parliament of Canada may alone enact laws 
 relating to crime, and also may establish " additional Courts for 
 the better administration of the laws of Canada," yet the adminis- 
 tration of justice and the constitution of the Courts of criminal 
 jurisdiction are almost exclusively undertaken and provided for 
 by the Provinces. 
 
 MAGISTRATES AND JUSTICES OF THE PEACE. 
 
 The delegation of the administration of justice to the Pro- 
 vinces gives the right to the Provinces to appoint Justices of the 
 Peace. The right of the Crown in the Dominion to appoint Jus- 
 tices of the Peace and Magistrates is a prerogative right, and is 
 also conferred by the B. N. A. Act, and can be exercised at any 
 time. 
 
 See Part III. of the Code, sections 143-154, and sec. 3. 
 
 In the Northwest Territories as they now exist, and the Yukon 
 Territory, the power to appoint Stipendiary Magistrates is vested 
 in the Governor-General in Council. In the Provinces, appoint- 
 ments are made by the Lieutenant-Governor in Council. 
 
 Justices of the Peace are either appointed by commission, or 
 are such for the time being by virtue of their holding some other 
 office. 
 
 In some Provinces, mayors of cities and towns are declared to 
 be ex officio Justices of the Peace. Eeeves of municipalities are 
 also ex officio Justices of the Peace ; in Ontario and British Colum- 
 bia the Judges of the Supreme Court! of Canada, the Judge of the 
 Exchequer Court of Canada and the Judges of the Supreme Court 
 of Judicature. In Manitoba, Judges of the County Court are 
 ex officio Justices of the Peace. Every Police and Stipendiary 
 Magistrate and Eecorder during his term of office is ex officio a 
 Justice of the Peace. 
 
 Commissioners of Police appointed by the Governor-General 
 in Council, Commissioners and Assistant Commissioners of E. N. 
 W. M. P., are vested with powers of two Justices of the Peace. 
 Superintendents of the force are Justices of the Peace ex officio. 
 Indian agents, officers appointed under the Fishery Act, returning 
 officers and deputy returning officers under the Dominion Election
 
 6 APPOINTMENT OF MAGISTRATES. 
 
 Act, from their appointment till the day after the election, are 
 Conservators of the Peace. 
 
 The office of Justice of the Peace was first instituted by the 
 Statute 1 Edward III. c. 2-5, 16, A. D. 1327. It was provided 
 that, for the better maintaining and keeping of the peace, in every 
 county good and lawful men should be assigned by commission of 
 the King. 
 
 In England, Justices of the Peace were described as judges of 
 record appointed by the King to be justices within certain limits 
 for the conservation of the peace, and for the execution of divers 
 things comprehended within their commission and within divers 
 statutes committed to their charge. (Dalt. c. 2.) 
 
 In 4 Institute, 170, Lord Coke says : " That the whole Chris- 
 tian world hath not the like office as Justice of the Peace if duly 
 executed." 
 
 Before the institution of Justices of the Peace, there were Con- 
 servators of the Peace in every county, whose office (according to 
 their names) was to conserve the King's Peace, and to protect the 
 obedient and innocent subjects from force and violence. 
 
 These Conservators by the ancient and common law were by 
 force of the King's writ chosen by the freeholders in the County 
 Court out of the principal men in the county. 
 
 By the Statute of Edward III. no other power was given than 
 that of keeping the peace; the title of Justice was not even con- 
 ferred. The title and power of exercising justice came afterward. 
 
 The majority of Justices of the Peace in Canada hold their 
 offices by virtue of the commissions appointing them. No property 
 qualification is required of a Justice of the Peace who is such 
 ex officio. But all Justices of the Peace appointed by commission 
 in Ontario, Quebec and Manitoba must have a property qualifica- 
 tion. 
 
 In the other Provinces no property qualification is required. 
 
 By the Statute 13 Rich. II., s. 1, c. 7, and the J8 Henry V., s. 2, 
 c. 1, the justices shall be made within the counties of the most 
 sufficient knights, esquires and gentlemen of the law. 
 
 By the Statute of 1 Mary, no sheriff shall exercise the office of 
 a Justice of the Peace during the time that he acts as sheriff. And 
 the reason seems to be because he cannot act at the same time both 
 as judge and officer, for so he would command himself to exercise 
 his own precepts. (Dalt. c. 3.)
 
 APPOINTMENT OF MAGISTRATES. 7 
 
 And if he be made a Coroner this, by some opinions, is a dis< 
 placement of his authority of a Justice of the Peace. (Dalt. c. 3.) 
 
 By 6 & 7 Viet. c. 13, s. 33, no attorney or solicitor shall act as 
 a Justice of the Peace while he continues in the business or prac- 
 tice of an attorney or solicitor. 
 
 By 1 Edw. VI., c. 7, s. 4, if a Justice of the Peace be created a 
 duke, archbishop, marquis, earl, viscount, baron, bishop, knight 
 judge or sergeant-at-law, this taketh not away his authority of a 
 Justice of the Peace. 
 
 QUALIFICATION. 
 
 The first enactment in England relating to the qualifications of 
 Justices of the Peace as regards estate is 18 George II., c. 20, s. 1. 
 The recital is as follows: "By many Acts of Parliament of late 
 years made the power and authority of Justices of the Peace is 
 greatly increased, whereby it is become of the utmost consequence 
 to the common weal to provide against persons of mean estate act- 
 ing as such. And whereas the laws now in force are not sufficient 
 for that purpose." It is enacted : " That from and after the 25th 
 day of March, 1746, no person shall be capable of being a Justice 
 of the Peace or of acting as such, for any county, riding or divi- 
 sion within that part of Great Britain called England, or the prin- 
 cipality of Wales, who shall not have either in law or equity to and 
 for his own use and benefit in possession a freehold, copyhold or 
 customary estate for life, or for some greater estate, &c., lying and 
 being in England or Wales of the clear yearly value of 100 over 
 and above all encumbrances." 
 
 An oath of qualification had to be taken, and to act without 
 taking the oath involved a penalty of 100. 
 
 Ontario, Quebec and Manitoba have followed the English law 
 requiring Justices of the Peace to have property qualification and 
 to take the oath respecting the same. 
 
 How AND BY WHOM APPOINTED. 
 
 The following is a summary of the laws of the different Pro- 
 vinces and Territories of Canada relating to the appointment of 
 Justices of the Peace and Police Magistrates, and their powers.
 
 8 JUSTICES OF THE PEACE IN ONTARIO. 
 
 ONTARIO. 
 
 The Justices of the Peace Act, R. S. 0. 1914, c. '87. 
 
 Justices of the Peace are appointed by the Lieutenant-Governor 
 in Council under the Great Seal. The justices are appointed for 
 each county, city, town, provisional judicial district or provisional 
 county, or for any part of Ontario not forming part of a county 
 or of a provisional judicial district. 
 
 Except when otherwise specially provided, " all Justices of the 
 Peace appointed in Ontario shall be of the most sufficient persons 
 dwelling in the counties, districts or places respectively, for which 
 they are appointed." 
 
 They must have a property qualification by having in actual 
 possession to and for their own proper use and benefit an estate 
 in land in Ontario, such estate being of or above the value of $1,200 
 over and above what will satisfy all encumbrances, and all rents 
 and charges payable out of or affecting the same. 
 
 Each Justice of the Peace is required to take and subscribe an 
 oath of qualification and oath of office before entering upon his 
 duties, and within three months from the date of commission under 
 which he is appointed. These oaths must be filed with the Clerk 
 of the Peace for the county or district in which the justice is to 
 act. 
 
 The penalty for acting without taking the oath of qualification, 
 or acting without being qualified, is forfeiture of $50, to be re- 
 covered by proceedings under the Ontario Summary Convictions 
 Act. 
 
 The Oath of Qualification is as follows: 
 
 I, A. B., of do swear that I truly and bona fide 
 
 have to and for my own proper use and benefit such an estate as 
 qualifies me to act as Justice of the Peace for the County (or as 
 the case may be) of according to the true intent and 
 
 meaning of the Justices of the Peace Act to wit: (state the nature 
 of the estate and describe the land.) 
 
 So help me God. 
 Sworn before me, etc. 
 
 J. P. 
 The Oath of Office is as follows: 
 
 I, A. B., of the in the County of , do 
 
 swear that I will well and truly serve our Sovereign Lord King
 
 JUSTICES OF THE PEACE IN ONTARIO. 
 
 George (or the reigning Sovereign for the time being) in the office 
 of Justice of the Peace, and I will do right to all manner of people 
 after the laws and usages of this Province without fear or favor, 
 affection or ill-will. So help me God. 
 
 Sworn before me, etc. 
 
 Under the statute, Justices are not required to have a legal 
 estate. It is sufficient if the land, though mortgaged in fee, ex- 
 ceeds by $1,200 the amount of the mortgage. Fraser v. McKenzie, 
 28 U. C. E. 255. 
 
 As all Justices of the Peace appointed in Ontario, Quebec and 
 Manitoba are to be " of the most sufficient persons," the object of 
 the qualification was to carry out this idea, namely, that Justices 
 should be men of worth and standing in the community. 
 
 On this subject of property qualification, see the cases of 
 Squierv. Wilson, 15 C. P. 284; Crandell v. Nott, 30 C. P. 63. 
 
 If a Commission of the Peace issues, and in it are included 
 the names of some who were appointed under a former Commission 
 and who had taken the necessary oath of office as a justice of the 
 peace, it is not necessary for these persons to again take such oaths. 
 
 All persons appointed to judicial offices in Canada are re- 
 quired to take the oaths of allegiance and of office before acting in 
 their judicial capacity, and a person temporarily appointed to be 
 Deputy Eecorder of Montreal is under the same obligation. 
 
 The accused having at the trial raised the point that the De- 
 puty Eecorder had not taken the oaths, it was held that he could 
 not claim to be in the position of a Judge de facto, but, so far as 
 the prisoner was concerned, he was a mere intruder in the office. 
 Ex parte Eliza Mainville, 1 C. C. C. 528. 
 
 The failure of a judicial officer to take the oath of allegiance 
 and the oath of office, when he has acted as the holder of the office, 
 and his qualification is not challenged by the accused at the trial, 
 doas not invalidate his judgments in criminal cases, and such 
 judgments are valid and binding as having been rendered by a 
 Judge de facto. 
 
 A Judge de facto is one who exercises the duties of a Judge 
 under colour of an appointment, and whose possession of the 
 office and exercise of its functions are acknowledged and acquiesced 
 in by those who appear before him and by the public ; he is one who 
 has the reputation of being the Judge he assumes to be, and yet 
 is not a good Judge in point of law.
 
 10 POLICE MAGISTRATES IN ONTARIO. 
 
 WDRTELE, J., in Ex parte Thomas Curry, 1 C. C. C. 532. See 
 also -O'Neil v. Attorney-General, 1 C. C. C. 303 ; R. v. Gibson, 3 C. 
 C. C. 451. 
 
 By section 20 of the Act, all Justices of the Peace must make 
 quarterly returns of all fines, forfeitures and penalties or damages, 
 and of receipt and application of the money received. The return 
 must be in writing and under the hand of the justices, and shall 
 be filed with the Clerk of the Peace on or before the second Tues- 
 day in March, June, September and December in each year in 
 the form given in the schedule to the Act. The penalty for neglect 
 is $60 and full costs, sec. 31. 
 
 The Clerk of the Peace is required within two weeks of receipt 
 of the returns to post them up in the Court House and in his 
 own office for public inspection. 
 
 See also section 1133 of the Code as to quarterly returns to be 
 made of convictions and monies received. 
 
 By section 69 of the Act Justices of the Peace may use the 
 town hall of any municipality which has no Police Magistrate for 
 the hearing of cases brought before them, but not so as to inter- 
 fere with its ordinary use. 
 
 POLICE MAGISTRATES IN ONTARIO. 
 The Police Magistrates Act, R. S. 0. 1914, ch. 88. 
 
 In Ontario every city and town having more than 5,000 inhabi- 
 tants shall have a Police Magistrate, his salary to be paid by the 
 city or town. Every other town may have a Police Magistrate if 
 the Lieut enant-Governor in Council sees fit to make an appoint- 
 ment. 
 
 See also sections 5 and 6 as to appointment of Police Magis- 
 trates in cities and towns. 
 
 Every Police Magistrate shall ex officio be a Justice of the 
 Peace for the whole county or union of counties, or district for 
 which he has been appointed. 
 
 In case of illness or absence, or at the request of the Police 
 Magistrate, any two or more Justices of the Peace may act in his 
 place in any matters within the jurisdiction of the Police Magis- 
 trate, and they shall have in such cases all the powers which, by 
 any Statute of the Province, are given to Police Magistrates. Thi?, 
 however, would not affect the provisions of the Criminal Code as
 
 POLICE MAGISTRATES IN ONTARIO. 11 
 
 to the jurisdiction of Police Magistrates and Justices of the Peace. 
 One Justice of the Peace may act whenever by law one Justice 
 has jurisdiction in that behalf. 
 
 By section 34 : " In case if illness or absence from the county 
 or district of a Police Magistrate, any other Police Magistrate, 
 whether appointed for the county or district, or for a city, town or 
 village, or other place therein, shall have all the powers and may 
 perform all the duties of the Police Magistrate during such illness 
 or absence, and may continue and complete any proceeding begun 
 before him, notwithstanding that the first mentioned Police Magis- 
 trate may in the meantime have recovered or returned." 
 
 A Police Magistrate has the powers of two Justices of the Peace. 
 
 No Justice of the Peace shall admit to bail or discharge a 
 prisoner, or adjudicate upon or otherwise act until after judgment 
 in a case arising in a town or city where there is a Police Magis- 
 trate, except at the Court of General Sessions of the Peace, or in 
 case of illness, or absence, or at the request, of the Police Magis- 
 trate. Sec. 18. 
 
 County Councils may pass resolutions affirming the expediency 
 of the appointment of a Police Magistrate for the county or part 
 of county, and the Lieutenant-Governor may make such appoint- 
 ment. The salary to be paid by the county. 
 
 A Police Magistrate is not required to have any property quali- 
 fication, but he must take his oath of office, which is practically 
 the same as that prescribed for Justices of the Peace. He must 
 file his oath of office with the Clerk of the Peace. He need not act 
 outside of the limits of the city, town or place for which he is 
 Police Magistrate unless he sees fit to do so. 
 
 Questions concerning the territorial jurisdiction of Police 
 Magistrates in Ontario have been the subject of judicial decision 
 upon several occasions. The most important cases will be found 
 cited in the judgment of Judge Macdougall in The Queen v. Mc- 
 Lean, 3 C. C. C. 323. 
 
 In that case it was held that a Police Magistrate, ex officio pos- 
 sessing the power of two Justices of the Peace, has power to 
 try a case arising in the county, sitting anywhere in the county, 
 the only restriction upon his acting in the City of Toronto being 
 that he could not try a case originating in the city except in the 
 illness, absence, or at the request, of the Police Magistrate for the 
 citv.
 
 12 VEXATIOUS ACTIONS AGAINST MAGISTRATES. 
 
 Vexatious Actions against Justices. 
 The Public Authorities Protection Act, R. S. 0. 1914, ch. 89. 
 
 This is a special statute dealing with actions brought against 
 Justices of the Peace and Police Magistrates. These officers are 
 liable to be sued for acts done by them in the execution of their 
 duty as such Justices. First, with respect to any matter within 
 their jurisdiction as such Justices. In these cases it shall be 
 expressly alleged in the statement of claim that the act was done 
 maliciously and without reasonable and probable cause. Second, 
 for any act done by a Justice of the Peace in a matter in which 
 by law he has not jurisdiction, or in which he has exceeded his 
 jurisdiction, or for any act done under a conviction, or order, or 
 warrant issued by the Justice of the Peace in such matter, any 
 person injured may maintain an action without making any alle- 
 gation in his statement of claim that the act complained of was 
 done maliciously and without reasonable and probable cause. 
 
 If a Justice of the Peace makes a conviction or order and a 
 warrant of distress, or of commitment, has been granted therein 
 by some other Justice of the Peace bona fide and without collusion, 
 the action, by reason of any defect in the conviction or order, will 
 not lie against the Justice of the Peace who issued the warrant, but 
 must be brought against the Justice who made the conviction or 
 order. Sec. 4, s.-s. (2). 
 
 No action can be brought for anything done under a conviction 
 or order until the conviction or order has been quashed, either upon 
 appeal, or upon application to the High Court. Sec. 4, s-s. (3). 
 
 These provisions are treated at further length in the next 
 chapter. 
 
 By Chapter 87 of R. 8. 0. (1914), above referred to, all Police 
 Magistrates must keep records of all convictions in a book ruled in 
 the same manner as the form of conviction in the Act respecting 
 returns of convictions and fines by Justices of the Peace. These 
 entries are to be made forthwith upon the happening of the event 
 in respect of which information is to be given. Such records shall 
 be open for inspection. The penalty for neglect of making such 
 return is $60 and full costs. Sec. 31. 
 
 Certified returns of entries in the Eecord Book are to be made 
 on or before the first Tuesday of March, June, September and 
 December of every year to the Clerk of the Peace of the county for
 
 SECURITY FOR COSTS AND FEES. 13 
 
 or within which he is Police Magistrate, and to the Inspector of 
 legal offices at Toronto. Sec. 29. 
 
 Security for Costs. 
 
 Section 16 of ch. 89, R. S. 0. 1914, provides for security for 
 costs in certain actions against Justices of the Peace or Police 
 Magistrates. 
 
 The defendant may at any time after the service of the writ 
 apply to the Court, or to a Judge for security for costs. 
 
 The application is to be made on notice and affidavit stating 
 the nature of the action, and that the plaintiff is not possessed of 
 property sufficient to cover the costs of the action and that the 
 defendant has a good defence upon the merits or that the grounds 
 of action are trivial or frivolous. 
 
 Fees to be Charged by Justices of the Peace. 
 
 Sec. 34 of R. S. 0. 1914, ch. 87. In cases not provided for by 
 the Criminal Code and the Ontario Summary Convictions Act, a 
 Police Magistrate not receiving a salary and a Justice of the Peace 
 shall be entitled to receive from the County, or, in the case of a 
 district, from the Province, the sum of $2 for all services of every 
 kind connected with the case, when the time occupied does not 
 exceed two hours, and 50 cents for each additional hour. 
 
 Sec. 35. The penalty for charging excessive fees is forfeiture 
 of $60, together with full costs of suit. 
 
 As to the fees to be taken by Justices under Part XV. of the 
 Code, vide sec. 770 of the Code, and schedule thereto. 
 
 QUEBEC. 
 
 Justices of the Peace. 
 
 By Articles 3333 to 3381, Revised Statutes of Quebec (1909), 
 which relate to Justices of the Peace, it is provided that Justices 
 of the Peace may be appointed by commission under the Great 
 Seal. All. Justices of the Peace appointed in the several districts 
 shall be taken from the most fit and proper persons dwelling in 
 the said districts respectively.
 
 14 JUSTICES OF THE PEACE IN QUEBEC. 
 
 The Lieutenant-Governor may by special Commission appoint 
 Justices of the Peace, whose jurisdiction shall extend outside any 
 district or county and over remote parts of the Province. It shad 
 not be necessary for any such Justice of the Peace to reside in or 
 possess any property qualification in that part of the Province for 
 which he is appointed. 
 
 All Justices of the Peace shall keep registers with faithful 
 minutes or memo, at length of every conviction at any time made 
 by them. When two Justices of the Peace sit the register shall be 
 kept by the senior Justice of the Peace and be subscribed by the 
 junior Justice present during the proceedings which have been had. 
 
 In Quebec, Montreal and Three Rivers, these registers are to 
 be kept by Clerks of the Peace. 
 
 All Justices of the Peace must make quarterly returns ^o the 
 Clerk of the Peace. 
 
 A Justice of the Peace may appoint one or more constables, if 
 need be, to execute the orders of such Justice of the Peace, who may 
 administer the requisite oath, which oath shall be registered in the 
 register of such Justice of the Peace. 
 
 Articles 3384 to 3388 provide for the protection of Justices of 
 the Peace, Magistrates and other officers in cases of actions against 
 them for things done in the performance of their public duties. 
 
 The qualification and oath of qualification are similar to those 
 required in Ontario, already referred to at length. This oath and 
 the oath of office must be filed with the Clerk of the Pea-ce for the 
 district. 
 
 The penalty for justices acting without having taken the oath 
 and not being qualified is $100 with full costs, to be recovered by 
 suit. 
 
 When not otherwise specially provided by law, no advocate shall 
 be a Justice of the Peace during the time he continues his practice. 
 
 Whenever any vessel belonging to His Majesty's navy is in the 
 Gulf or River St. Lawrence, every officer attached or belonging to 
 such vessel and holding commission of Vice- Admiral, Post-Captain, 
 Captain or Commander in His Majesty's Navy, and any Lieutenant 
 having command of such vessel, shall be ex officio a Justice of the 
 Peace for the Districts of Gaspe, Saguenay and Rimouski, while 
 such vessels remain within the limits of the Province. They are 
 exempt from residence and property qualification, and it is not 
 necessary for them to take the oath of office.
 
 POLICE MAGISTRATES IN QUEBEC. 15 
 
 Police Magistrates. 
 
 By Article 3282, the Lieutenant-Governor may from time to 
 time appoint, by commission under the Great Seal, fit and proper 
 persons to be and act as Police Magistrates within any one or more 
 districts or throughout the Province. 
 
 It is not necessary for any one so appointed to have any pro- 
 perty qualification, or to be resident in any district for which he 
 may be appointed. Art. 3283. 
 
 Every Police Magistrate shall keep minutes of every proceeding 
 had by and before him, and shall keep such accounts, make such 
 returns and collect such information within his jurisdiction, and 
 perform such other duties, as the Lieutenant-Governor may from 
 time to time prescribe and require. All moneys arising from 
 penalties, forfeitures and fines imposed or collected by Police 
 Magistrates are to be accounted for in such manner as the Lieuten- 
 ant-Governor may direct. Art. 3285, 3286. 
 
 Police Magistrates may appoint constables, if necessary, to carry 
 out their orders, and the Police Magistrate may at his pleasure 
 remove any such constable. Every police constable so appointed 
 shall obey the lawful commands of the Magistrate and be subject 
 to his government. Art. 3287. 
 
 Police Magistrates must take oath of office and file same with 
 the Clerk of the Peace for the district. 
 
 District Magistrates. Articles 3291-3313. 
 
 The Lieutenant-Governor may appoint by Commission under 
 the Great Seal one or more District Magistrates, who shall be 
 advocates of at least five years' standing, who shall, upon their 
 appointment, cease practising. The Lieutenant-Governor may also- 
 establish Magistrates' Courts for counties, cities and towns. 
 
 These Magistrates have the power of two or more Justices of 
 the Peace and of the Judge of Sessions. They have both civil and 
 criminal jurisdiction. 
 
 Stipendiary Magistrates. Articles 3259-3277. 
 
 The Lieutenant-Governor of Quebec may appoint Stipendiary 
 Magistrates, called Judges of the Sessions of the Peace, for the 
 Cities of Quebec and Montreal, with jurisdiction over the whole 
 Province to perform the duties of Judges of the Sessions, and such
 
 16 JUSTICES OF THE PEACE IN NOVA SCOTIA. 
 
 duties as may be from time to time imposed upon them by any law 
 in force in the Province. 
 
 Recorders. 
 
 All powers and jurisdiction conferred upon the Judges of the 
 Sessions of the Peace for the Cities of Quebec and Montreal, or 
 upon two or more Justices of the Peace, by the provisions of the 
 following section, were vested in and may be exercised by the 
 Eecorders and by the Eecorders' Courts of and for the said cities, 
 and by those who by law act in the absence on account of sickness 
 or otherwise of the said Eecorders, or when there is no Becorder, 
 and discharge the duties of that office. 
 
 By section 582 of the Code, Courts of General or Quarter 
 Sessions of the Peace in the cities of Montreal and Quebec, when 
 presided over by a Eecorder, or Judge of the Sessions of the Peace, 
 have power to try any indictable offence, except as mentioned in 
 section 583. 
 
 See section 588 of the Code as to trial of offences committed in 
 Gaspe. 
 
 NOVA SCOTIA. 
 
 Justices of the Peace. 
 
 Under the provisions of Chapter 38, R. 8. N. 8. (1900), the 
 Governor (sic) in Council may from time to time by Commission 
 under the Great Seal of the Province, or the Seal-at-arms, appoint 
 such and so many Justices of the Peace in and for the several and 
 respective counties of the Province as he deems expedient and 
 proper. 
 
 The holder of a liquor license is not eligible for appointment. 
 No property qualification is required. The oath of office in Form 
 "A," schedule to the Act, may be sworn before the Warden, or 
 Clerk of the municipal district in which the person resides. 
 
 The Clerks of the municipal districts shall keep a record of each 
 person sworn, shewing the date sworn. A copy of the record shall 
 be evidence. The Governor-in-Council may remove any person 
 from office, and the notice of such removal must be published in 
 the Royal Gazette for the Province.
 
 STIPENDIARY MAGISTRATES IN NOVA SCOTIA. 17 
 
 Chapter 39 removes certain disqualifications by reason of being 
 a ratepayer, etc. 
 
 Chapter 40 provides for the protection of Justices of the Peace 
 and Stipendiary Magistrates, and is similar to the Ontario Act. 
 
 Chapter 42. Constables' Protection Act. 
 
 Stipendiary Magistrates. 
 
 Chapter S3, R. S. N. 8. (WOO}. Stipendiary Magistrates shall 
 be appointed by the Governor in Council, one for every incorpor- 
 ated town, who shall hold office during good behaviour. He shall 
 be paid a salary by the town council not less than $150 per annum. 
 The Governor in Council may also appoint Stipendiary! Magistrates 
 for each county, who shall hold office during pleasure. These 
 Magistrates shall be paid the fees of their office, but the council 
 may at any time by resolution grant an annual salary and receive 
 the fees to its own use. Such Stipendiary shall have jurisdiction 
 throughout the whole county for which he is appointed, and such 
 larger area as is prescribed by any special law. 
 
 A Stipendiary shall have the power of a Police Magistrate and 
 of two Justices of the Peace. He shall, by virtue of his office, be a 
 J. P. for the whole of the county in which he presides. In case of 
 the illness or absence of a Stipendiary, or at his request, two 
 Justices of the Peace may act. He must take and subscribe the 
 oath of office and file the same. A town solicitor is not disqualified 
 from acting as a Stipendiary Magistrate. 
 
 See Johnston v. McDougall, 17 C. C. C. 58, 398, as to the juris- 
 diction of Stipendiary Magistrates in Nova Scotia after changes in 
 the statutes under which they had been appointed. 
 
 Under Chapter 41, R> S. N. 8., a Stipendiary Magistrate has 
 power to swear in constables to hold office not more than thirty 
 days. 
 
 Under the same Act a municipal council may, at the annual 
 meeting appoint as many persons as it sees fit to be constables, and 
 may likewise dismiss them. 
 
 The council may also appoint a Chief Constable for one year. 
 Three Justices of the Peace may appoint special constables in the 
 event of a riot or unlawful assembly. The Governor in Council 
 may appoint Provincial Constables. 
 
 C.C.P. 2
 
 18 JUSTICES OF THE PEACE IN NEW BRUNSWICK. 
 
 NEW BRUNSWICK. 
 
 By Chapter 58, Con. Stat. N. B. (1903), it shall be lawful for 
 the lieutenant-Governor, by and with the advice of the Executive 
 Council, at any time or times to appoint under the Great Seal of 
 the Province such and so many Justices of the Peace in and for 
 the several and respective counties of the Province as may be 
 deemed expedient and proper. 
 
 Justices of the Peace must take the oath of office before the 
 Clerk of the Peace for the county, or city for which they shall be 
 appointed. A record of such swearing is to be kept by the Clerk. 
 
 By Chapter 119 of the Con. Stat. the Lieu tenant-Governor in 
 Council may appoint Stipendiary, or Police Magistrates within any 
 county, and such shall be a Court having and exercising all crim- 
 inal, or quasi criminal, jurisdiction conferred upon Stipendiary 
 or Police Magistrates by law. 
 
 As to the jurisdiction of Parish Court Commissioners in New 
 Brunswick, see Ex parte Flanagan, 5 C. C. C. 82, and Ex parte 
 Monahan, 17 C. C. C. 53. 
 
 The Lieutenant-Governor may fix the town, or parish, where the 
 Court is to be held. All Stipendiary or Police Magistrates shall be 
 ex officio Justices of the Peace for the county over which they have 
 jurisdiction. Each Stipendiary or Police Magistrate is created, 
 declared and constituted a Court, and to have powers conferred by 
 any Act of Parliament of Canada. They are to have jurisdiction 
 over complaints, etc., arising within the county under Dominion or 
 Provincial Summary Convictions Acts, and all powers of Justices 
 of the Peace in any matter or proceeding, also to have alone all 
 powers of two Justices of the Peace. 
 
 These Magistrates are granted civil jurisdiction to the same 
 extent and in the same manner as the Parish Court Commissioners 
 have by the provisions of chap. 120 of the Consolidated Statutes. 
 They must take the prescribed oath of office before the Clerk of the 
 Peace for the County, and file the same in his office.
 
 JUSTICES IN PRINCE EDWARD ISLAND. 19 
 
 PRINCE EDWARD ISLAND. 
 
 By the Statute 50 Victoria, Chap. 2 (1887}, Rev. Stat. 1891, 
 Chaps. 93 and 1J+3, the Lieutenant-Governor in Council may 
 appoint, under the Great Seal, such and so many Justices of the 
 Peace in and for the several and respective counties of the Province 
 as may be deemed expedient and proper. 
 
 The oath of office must be taken before the Chief Justice of the 
 Supreme Court, or any Assistant Judge, or before the County 
 Court Judge of the county in which the Justice of the Peace resides. 
 
 Upon being sworn, the Judge shall deliver to such person being 
 sworn a certificate in writing 'under his hand that such person did 
 duly take the oath before him. 
 
 Before entering upon his duties the Justice of the Peace must 
 file this certificate in the office of the Provincial Secretary, who is 
 to keep a record of the same. 
 
 The Lieutenant-Governor in Council may remove any Justice 
 of the Peace, and notice of such removal must be given in the 
 Royal Gazette. 
 
 No sheriff or deputy shall act as a Justice of the Peace during 
 his term of office. (1888), 51 Vic., cap. 1, P. E. I. 
 
 BRITISH COLUMBIA. 
 
 The appointment of Magistrates and Justices of the Peace vs 
 regulated by the " Magistrates' Act," chap. 149, Rev. Statutes, 1911. 
 
 The Lieutenant-Governor in Council may appoint by Commis- 
 sion, under the Great Seal of the Province, fit and proper persons 
 to be Stipendiary Magistrates for any one or more counties or 
 electoral districts in the Province, or for any less extensive juris- 
 diction, and may byi order in Council cancel and revoke the Com- 
 mission, or appointment. 
 
 The Lieutenant-Governor, whenever he shall think fit, may issue 
 either a general commission of the peace, or supplementary commis- 
 sions of the peace, appointing by letters patent under the Great 
 Seal of the Province Justices of the Peace in and for any county or 
 electoral district or in and for any less extensive jurisdiction. Such 
 appointments may be cancelled by order in Council.
 
 20 JUSTICES IX BRITISH COLUMBIA. 
 
 Every Judge of the Supreme Court of Canada, of the Exchequer 
 Court of Canada, of the Court of Appeal , and of the Supreme 
 Court of British Columbia and any of the County Courts shall be 
 ex officio a Justice of the Peace for the Province. All disqualifica- 
 tions by reason of being a ratepayer are removed. 
 
 Oaths of office and allegiance are set forth in the first schedule 
 to the Act. 
 
 These oaths are to be taken before a Justice of the Peace, and, 
 when taken, the same are to be transmitted to the Provincial 
 Secretary, who shall file the same among the records of his office. 
 These oaths must be taken and transmitted within sixty days from 
 the appointment. 
 
 Returns are to be made quarterly, on or before the second Tues- 
 day in the months of March, June, September and December in 
 each year, of all convictions, and of the receipt and application of 
 moneys received. The penalt)" for neglect in making these returns 
 is $200 and full costs of suit. 
 
 All fines, save those specially appropriated to the Justice of the 
 Peace, or to any municipality, shall be paid to the Provincial 
 Treasurer monthly. 
 
 Oath of Office. 
 
 I, , swear that as a Stipendiary Magistrate, or Justice 
 
 of the Peace, for the County or Electoral District of , 
 
 in the Province of British Columbia, in all articles in the King's 
 Commission to me directed, I will do equal right to the poor and to 
 the rich after my cunning, wit and power, and after the laws and 
 customs of the Realm and Statutes thereof made. And that I 
 will take nothing for my office of Stipendiary Magistrate, or Justice 
 of the Peace, to be done, but of the King and fees accustomed, and 
 costs limited by statute. So help me God. 
 
 Oath of Allegiance. 
 
 I, , do solemnly promise and swear that I will be 
 
 faithful, and bear true allegiance to His Majesty, King George 
 the Fifth, his heirs and successors. So help -me God. 
 
 Chapter 150 of the Rev. Stat. B. C. 1911, provides for the pro- 
 tection of Magistrates. The provisions of this Act are taken from 
 the Imperial Statute 11 & 12 Viet., chap. 44-
 
 JUSTICES AND MAGISTRATES IN MANITOBA. 21 
 
 MANITOBA. 
 
 R. 8. Man. Chapter 121 (1913}," The Manitoba Magistrates' Act" 
 
 The Lieutenant-Governor in Council may, whenever he shall 
 think the public interest requires him to do so, appoint one or more 
 Police Magistrates, and may define the territorial limits of their 
 separate and respective jurisdictions, and he may at any time re- 
 move, suspend or dispense with any of such officers, and re-appoint 
 other, or others, in his or their stead, at pleasure. 
 
 Every Police Magistrate shall have, and exercise within the 
 limits of his territorial jurisdiction, all the powers and authority 
 vested in a Police Magistrate, a Stipendiary Magistrate, or two or 
 more Justices of the Peace sitting and acting together under any 
 law or statute in force in Manitoba. 
 
 It shall be lawful for the Lieutenant-Governor in Council, 
 whenever he shall think fit, to appoint under the Great Seal one or 
 more Justices of the Peace in and for any city, town or other muni- 
 cipality in the Province of Manitoba, or for the whole Province. 
 
 Whenever a new Commission shall be issued, all and such like 
 former commissions shall become absolutely revoked and cancelled, 
 but nothing shall prevent the re-appointment of any Justice of the 
 Peace named in such former Commission if the Lieutenant-Gover- 
 nor shall think fit. All justices appointed shall be chosen from 
 amongst the most competent persons dwelling in the said portions 
 respectively. 
 
 No barrister, attorney or solicitor shall be appointed, or act, as 
 a Justice of the Peace during the time he continues his practice as 
 such. Sheriffs and Coroners shall not be competent or qualified to 
 be Justices of the Peace, or act as such during the time they exer- 
 cise their offices. Provided the Lieutenant-Governor in Council 
 may, under special circumstances and in view of public convenience, 
 confer under the Great Seal upon one and the same person the 
 offices of Coroner and Justice of the Peace. 
 
 A Police Magistrate does not require any property qualification. 
 
 A Justice of the Peace must be the owner in fee simple for his 
 own use of land in the Province of the value of $500 over and 
 above all incumbrances affecting the same. 
 
 The oath of qualification is as follows: 
 
 I, A. B., of , in the Province of Manitoba, do 
 
 swear that I truly and bona fide have to and for my own proper use
 
 22 JUSTICES AND 3IAGISTRATES IN MANITOBA. 
 
 and benefit an estate in fee simple in lands situate in the Province 
 of Manitoba of such a value as doth qualify me to act as a Justice 
 of the Peace according to the true intent and meaning of the 
 statute in that behalf, and that such lands are the following 
 (parish or township, range, etc.) So help me God. 
 
 A certificate of such oath being taken and subscribed as afore- 
 said shall be forthwith deposited by the Justice of the Peace who 
 has taken the same in the office of the Provincial Secretary. 
 
 Xo person shall be published in the Manitoba Gazette as a 
 Justice of the Peace until and after the said person has strictly and 
 fully complied with the requirements of the two last preceding 
 sections of the Act. Sec. 11. 
 
 On demand, the Provincial Secretary shall deliver an attested 
 copy of the oath, in writing, to any person paying twenty-five cents 
 for the same. Such copy when produced in the trial of any issue 
 shall have the same force and effect as the original would have if 
 produced. 
 
 The penalty for acting without taking and subscribing the oath, 
 or without being qualified, shall for every offence be $100 with full 
 costs. 
 
 Then follow provisions as to actions being brought against Jus- 
 tices of the Peace not being properly qualified. 
 
 All Police Magistrates and Justices of the Peace are required 
 to make semi-annual returns before the 30th June and December 
 in each and every year, in duplicate, one to be sent to the Attorney- 
 General of the Province and the other to the Provincial Treasurer. 
 Such returns must shew the convictions and orders made, the dam- 
 ages or penalty and costs imposed, the amounts received for fines, 
 forfeitures, penalties, or damages, or costs, and the receipt and 
 application by them of moneys received from any person so con- 
 victed. Sec. 22. 
 
 In case of convictions, or other dispositions before two or 
 more Justices of the Peace, all the Justices of the Peace present 
 and joining therein shall forthwith make a return in the manner 
 aforesaid. Sec. 23. 
 
 Eefusal and neglect to make returns as required by the statute 
 or within thirty days from the time required by written notice 
 from the Provincial Treasurer, and after the expiry of thirty days 
 from such notice, will mean the publication of such default in 
 the Manitoba Gazette during two successive issues, giving thirty 
 lavs more for making such return, and, default still continuing,
 
 JUSTICES AND MAGISTRATES IN MANITOBA. 23 
 
 the name of the Magistrate, or Justice of the Peace, so in default 
 will be erased from the Commission, and his appointment will be 
 cancelled. 
 
 Semi-annual returns must also be made shewing the disposition 
 of all cases, matters and proceedings had or taken before him upon 
 any trial, case or hearing, where no conviction has taken place, or 
 where matters have been otherwise settled or disposed of. In de- 
 fault of such return his name will be struck off the Commission of 
 the Peace. 
 
 The return shall be made in form " A " to the Act, Default 
 will also subject Magistrates and Justices of the Peace to a penalty 
 of $80 with full costs of suit, to be recovered by any person who 
 sues for the same. 
 
 Protection is afforded to Magistrates and Justices of the Peace 
 as provided in the Act. 
 
 E. S. M. 1913, ch. 189. The Manitoba Summary Convictions 
 Act. 
 
 R. S. M. 1913, Chapter 189, The Manitoba Summary Convictions 
 
 Act. 
 
 Recovery of Fines and Penalties. 
 
 Where a fine or penalty is imposed for any contravention of an 
 Act of the Legislature or a by-law of a municipality passed under 
 the authority of an Act of the Legislature, if no special mode 
 of procedure is prescribed such fine or penalty may be recovered 
 and enforced in a summary way before one justice of the peace. 
 Sec. 2. 
 
 Application of Criminal Code. 
 
 Sections 705 to 770, inclusive, of the Act of the Parliament 
 of Canada known as " The Criminal Code," being chapter 146 
 of the Revised Statutes of Canada, 1906, and any enactments which 
 may repeal or be substituted for the same, and the Acts already 
 passed or which may hereafter be passed amending any of the 
 said sections or enactments, shall apply to all prosecutions and 
 proceedings before Police Magistrates or Justices of the Peace 
 under the statutes of the Province or under municipal by-laws 
 passed under the authority of any of such statutes, so far as the 
 same are consistent therewith. Sec. 4.
 
 24 JUSTICES OF THE PEACE IN SASKATCHEWAN. 
 
 Except where otherwise specially provided, all appeals from 
 convictions or orders of Police Magistrates or Justices of the Peace 
 shall be brought under the provisions of the said Acts of the Par- 
 liament of Canada. Sec. 6. 
 
 SASKATCHEWAN. 
 
 Justices of the Peace, R. S. SasJc. 1909, chapter 62. 
 
 The Lieu tenant- Governor may appoint under the Great Seal 
 Justices of the Peace for the Province. 
 
 No one who is not a British subject, either by birth or naturali- 
 zation, shall be appointed. No advocate who is practising his pro- 
 fession can be appointed a Justice of the Peace. 
 
 The usual oath of office is prescribed. 
 
 Return of all fines, etc., payable to the Province shall forthwith 
 after receipt of same be transmitted to -the Attorney-General, with 
 a statement in form " A/' in the schedule to the Act. 
 
 And in the months of January and July in each year, and 
 before the 15th day thereof, Justices of the Peace shall make returns 
 in writing signed by them to the Attorney-General, shewing the 
 result, disposition of or action taken upon or in regard to any such 
 matter. These returns must be made in form " B," in the schedule 
 to the Act. Default in making these returns subjects the Justice, 
 after certain formalities have been complied with, to having his 
 name published in the Gazette. And, if he still neglects after thirty 
 days from the publication of his default in the Gazette, then his 
 name will be erased from the Commission of the Peace. 
 
 A defaulting Justice of the Peace is also liable to a penalty of 
 $100, with full costs of suit. 
 
 Police Magistrates, R. 8. Sask., 1909, chapter 61. 
 
 By] this Act, the Lieutenant- Governor may appoint a Police 
 Magistrate in and for every city and incorporated town. These 
 Magistrates are paid by the council, out of the revenue of the city 
 or town, such annual salary as may be agreed upon between the 
 municipality and the Magistrate. If a city has paid a Police 
 Magistrate $1,000 per annum, the Provincial Treasurer may recoup
 
 POLICE MAGISTRATES IN SASKATCHEWAN. 25 
 
 the city to the extent of $500; or, if a town has paid $600 per 
 annum, the Provincial Treasurer may pay to the town council $300. 
 
 No person shall be appointed a Police Magistrate unless he is a 
 member of the bar of the Supreme Court of Saskatchewan. 
 
 Every Police Magistrate shall have the power of two Justices of 
 the Peace, and perform all the duties of his office under the 
 Criminal Code. The jurisdiction of a Police Magistrate is confined 
 to the city or town for which he is appointed, except in the cases 
 provided for in sections 21 and 22 of the Act. 
 
 Police Magistrates and their clerks, or partners, shall not act as 
 agent, solicitor or barrister in any cause, matter, prosecution or 
 proceeding of a criminal nature, or act in any matter which by law 
 may be tried or investigated by a Police Magistrate, or Justice of 
 the Peace, within his judicial district. 
 
 No qualification as to property is required, but each Police 
 Magistrate must take the oath of office prescribed ; these oaths must 
 be transmitted to the Attorney- General. 
 
 All provisions of Part XV. and Part XXII. of the Criminal 
 Code and amending Acts shall apply to all proceedings before 
 Police Magistrates under, or by virtue of, any law or under muni- 
 cipal by-laws, and to appeals from convictions or orders. 
 
 Police Magistrates must keep records in a book to be provided 
 by the Council, to be called " The Police Office Eecord Book," ruled 
 in the same manner as the form of return of convictions set out in 
 the schedule to the Act. A Police Magistrate shall from time to 
 time enter in the said book the information required to be given in 
 the form of said returns. Entries are to be made forthwith and, in 
 case a fine or penalty imposed is not collected within three months 
 after the imposition thereof, the cause for the same not being col- 
 lected shall be written in the column of remarks. This record 
 book shall be open for inspection. 
 
 The penalty for not making proper entry within the month of 
 the conviction is $100 with full costs, to be recovered by the Attor- 
 ney-General by suit in the Supreme Court. 
 
 All fines and moneys received by Police Magistrates shall be 
 forthwith transmitted to the Attorney-General in the form State- 
 ment A.
 
 26 JUSTICES AND MAGISTRATES IN ALBERTA. 
 
 ALBERTA. 
 
 6 Edward VII. (1906), Chapter IS, and amendments in 1907, ch. 
 5, sec. 9; in 1908, ch. 20, sec. 10, and in 1909, ch. 4, sec. 8. 
 
 The Lieutenant-Governor in Council may appoint Police Magis- 
 trates in the Province, and they shall have all the powers now, or 
 hereafter, vested in two Justices of the Peace under any law in 
 Canada, and shall exercise jurisdiction in and for such part of the 
 Province as is defined by Order in Council appointing them, or by 
 any Order in Council amending the same. 
 
 All Police Magistrates and Justices of the Peace shall hold office 
 during pleasure of the Lieutenant-Governor in Council, and their 
 appointments may be revoked at any time. 
 
 The Lieutenant-Governor may appoint Justices of the Peace 
 for the Province who shall have jurisdiction as such throughout the 
 same. 
 
 No person who is not a British subject by birth, or naturaliza- 
 tion, shall be appointed a Justice of the Peace. 
 
 When not otherwise specially provided for by law, no advocate 
 shall be appointed, or act, as a Justice of the Peace during the 
 time he continues to practice as such. 
 
 This shall not apply to any advocate appointed as a Police 
 Magistrate. 
 
 Every Police Magistrate and Justice of the Peace, before he is 
 gazetted as such and takes upon himself to act as such, shall take 
 and subscribe the oath of allegiance and oath of office. 
 
 Oath of Offi.ce. 
 
 I, , of the in the District of (as 
 
 the case may be), do swear that I will well and truly serve our 
 Sovereign Lord, King George the Fifth, in the office of Police 
 Magistrate (or Justice of the Peace), and that I will do right to 
 all manner of people after the laws and usages of this Province 
 without fear or favor, affection or ill-will. So help me God. 
 
 This oath is to be forthwith, after the same is taken, trans- 
 mitted or delivered to the Clerk of the Executive Council, and shall 
 be filed in his office. 
 
 All the provisions of Part LVIII. (now XV.) of the Criminal 
 Code shall apply to all proceedings before Police Magistrates and
 
 MAGISTRATES IN THE NORTH-WEST TERRITORIES. 27 
 
 Justices of the Peace under or by virtue of any law in force in the 
 Province, or municipal by-laws and to appeals from convictions or 
 orders made therein. 
 
 Eeturns of fines and penalties are to be transmitted to the 
 Attorney-General with statement as in form " A " in the schedule 
 to the Act. 
 
 Before the 15th day of January and July in each year every 
 Police Magistrate and Justice of the Peace shall make a return in 
 writing signed by him, to the Attorney-General, shewing the result 
 disposition of, or action taken upon, or in regard to any matter 
 of any nature whatsoever which is concerned, tried, heard, revised 
 or adjudged upon by him. This return is to be in Form " B " in 
 the schedule to the Act. 
 
 There is the usual provision to enforce these returns, the same 
 as in Saskatchewan. 
 
 NORTH-WEST TERRITORIES. 
 
 Chapter 62, R. S. Canada, 1906. 
 
 " Territories " means the Northwest Territories, " which com- 
 prise the Territories formerly known as Rupert's Land and the 
 Northwestern Territory, except such portions thereof as form the 
 provinces of Manitoba, Saskatchewan and Alberta, and the Yukon 
 Territory, together with all British territories and possessions in 
 North America, and all islands adjacent thereto not included within 
 any Province, except the Colony of Newfoundland and its depen- 
 dencies." 
 
 The Governor-General in Council may appoint such number of 
 persons as Stipendiary Magistrates from time to time as may be 
 deemed expedient. 
 
 Every Stipendiary Magistrate shall have and may exercise the 
 powers, authorities and functions which are vested in a Judge of 
 the Supreme Court by the Northwest Territories Act and amend- 
 ments thereto on the 31st day of August, 1905. 
 
 Stipendiary Magistrates must take the following oath: 
 
 I, , do solemnly and sincerely promise and swear that 
 
 I will duly and faithfully, and to the best of my skill and know- 
 ledge, execute the powers and trusts reposed in me as a Stipendiary 
 Magistrate of the Northwest Territories. So help me God.
 
 SJ8 MAGISTRATES IN THE N.-W. AND YUKON TERRITORIES. 
 
 Such oath may be taken before the Commissioner for the North- 
 west Territory, or before a Stipendiary Magistrate. 
 
 The Commissioner of the N. W. T. may, subject to any orders 
 made in that behalf from time to time by the Governor-General in 
 Council, issue orders to the Royal Northwest Mounted Police in 
 aid of the administration of civil and criminal justice, and for the 
 general peace, order and good government of the Territories. 
 
 The procedure in criminal cases shall, subject to any Act of the 
 Parliament of Canada, conform as nearly as may be to the proce- 
 dure existing in like matters in England on the 15th dayi of July, 
 1870. 
 
 No grand jury shall be summoned or sit in the Territories. 
 
 A Stipendiary Magistrate shall have and exercise the powers of 
 a Justice of the Peace, or of any two Justices of the Peace, under 
 any laws or ordinances in force in the Territories. 
 
 Provision is made for summary trials of certain specified 
 offences by Stipendiary Magistrates. 
 
 By Chapter 32, 6-7 Edward Vlt. (1907), the Northwest Terri- 
 tories Act was amended by providing that the Commissioner of the 
 Royal Northwest Mounted Police, while in the Territories, shall 
 have all the jurisdiction, powers and authority of a Stipendiary 
 Magistrate appointed under section 32 of the said Act. While 
 in the Northwest Territories the Commissioner, every member of 
 the Council appointed under section 6 of the said Act, every Sti- 
 pendiary (Magistrate appointed under section 32 thereof, and 
 every commissioned officer of the Royal Northwest Mounted Police, 
 shall ex officio have, possess and exercise all the jurisdiction, powers 
 and authority of a Justice of the Peace, and of two Justices of the 
 Peace, under any laws or ordinances in force in the Territories 1 , 
 and the Governor in Council may by Commission appoint such 
 other persons Justices of the Peace having each the jurisdiction, 
 powers and authority of two Justices of the Peace within the Ter- 
 ritories, as is deemed expedient. 
 
 YUKON TERRITOEY. 
 
 The Yukon Act, Chapter 68, E. 8. C. 1906. 
 
 Sec. 105. While in the Territory, the Commissioner, each 
 member of the Council, every Judge of the Court and every com- 
 missioned officer of the Roya) Northwest Mounted Police shall
 
 MAGISTRATES IN YUKON TERRITORY. 29 
 
 ex officio have, possess and exercise all the powers of a Justice of 
 the Peace, or of two Justices of the Peace, under any laws or ordin- 
 ances, civil or criminal, in force in the Territory ; and the Governor 
 in Council may by Commission appoint such other persons Jus- 
 tices of the Peace or Police Commissioners, having each the powers 
 of two Justices of the Peace within the Territory, as may be 
 deemed desirable. 
 
 Sec. 106. All persons possessing the powers of two Justices 
 of the Peace in the Territory shall also be Coroners in and for the 
 Territory. 
 
 Sec. 89. The Governor in Council may appoint Police Magis- 
 trates for Dawson and White Horse in the Territory, who shall 
 reside at those places respectively, and shall ordinarily exercise 
 their functions there, but who also shall have jurisdiction in such 
 portions of the Territory as are defined in their Commissions. 
 Such Police Magistrates shall hold office during pleasure, and shall 
 be debarred from practising professionally while holding office. 
 
 Such Magistrates must be advocates, barristers or solicitors in 
 one of the Provinces of Canada of not less than three years. 
 
 They are ex officio Justices of the Peace within the territorial 
 limits of their jurisdiction, with authority and jurisdiction of two 
 Justices of the Peace and Magistrates for the purposes of Part 
 XVI. of the Criminal Code. 
 
 Each of the Judges of the Territorial Court has the criminal 
 jurisdiction of a Police Magistrate. 
 
 OFFENCES COMMITTED IN UNORGANIZED TERRITORY. 
 Section 586 of the Code (as amended 1907}. 
 
 All offences committed in any part of Canada not in a Pro- 
 vince duly constituted as such, and not in the Yukon Territory, 
 may be inquired of and tried within any district, county or place 
 in any Province so constituted, or in the Yukon Territory, as may 
 be most convenient. (2) Such offences shall be within the juris- 
 diction of any Gourt having jurisdiction over offences of the like 
 nature committed within the limits of such district, county or 
 place. (3) Such Court shall proceed therein to trial, judgment
 
 30 THE BOYAL NORTHWEST MOUNTED POLICE. 
 
 and execution or other punishment for any such offence in the same 
 manner as if such offence had been committed within the district, 
 county or place where the trial is had. 
 
 Sec. 587. Such Provincial and Yukon Courts shall have the 
 same powers as they have with reference to offences within their 
 ordinary jurisdiction. 
 
 THE BOYAL NORTHWEST MOUNTED POLICE. 
 Chapter 91, R. S. C. 1906. 
 
 Sec. 12. The Commissioner and Assistant Commissioners have 
 the powers of two Justices of the Peace under this Act, or any Act 
 in force in the Provinces of Saskatchewan and Alberta, and the 
 Northwest Territories and Yukon Territory. 
 
 The Superintendent and such other officers as the Governor in 
 Council approves shall be ex officio Justices of the Peace. 
 
 Every constable of the force shall be a constable in and for the 
 two Provinces and the Northwest Territories and Yukon Territory 
 for carrying out any laws or ordinances in force therein. 
 
 Sec. 13. The Commissioner and other officers are empowered 
 to exercise in any Province of Canada adjacent to the said Pro- 
 vinces of Saskatchewan and Alberta, or to the Northwest Territor- 
 ies or Yukon Territory, and every constable is empowered to exer- 
 cise in every Province of Canada, for the purpose of carrying 
 out the criminal law and other laws of Canada, like powers and 
 duties as are in the last preceding section assigned to him with 
 respect to the said two Provinces and the said Northwest and 
 Yukon Territories. 
 
 While so exercising powers or performing duties outside of 
 the two Provinces and Northwest and Yukon Territories, a mem- 
 ber of the force shall be subject to the Royal Northwest Mounted 
 Police Act. 
 
 Every member of the force must take the oath of allegiance 
 and the prescribed oath of office. 
 
 The u Keewatin Act " has been repealed, and the territory 
 heretofore known as " Keewatin " is now included within the 
 Northwest Territories, and criminal and civil matters therein are 
 governed by Chapter 62, B. S. C. 1906.
 
 OATH OF ALLEGIANCE. 
 
 OATH OF ALLEGIANCE. 
 Chapter 78, R. 8. C. 1906, sec. 2. 
 
 Every person in Canada who, either of his own accord, or in 
 compliance with any? lawful requirement made of him, or in 
 obedience to the directions of any Act or law in force in Canada, 
 save and except the British North America Act, 1867, desires to 
 take an oath of allegiance, shall have administered to him and take 
 the oath in the following form and no oilier: 
 
 I, A. B., do solemnly promise and swear that I will be faithful 
 and bear true allegiance to His Majesty, King George V. (or 
 reigning Sovereign for the time being) as lawful Sovereign of tho 
 United Kingdom of Great Britain and Ireland, of the British 
 possessions beyond the seas, and of this Dominion of Canada, 
 dependent on and belonging to the said Kingdom, and that I will 
 defend him to the utmost of my power against all traitorous con- 
 spiracies or attempts whatsoever, which shall be made against His 
 person, Crown and dignity, and that I will do my utmost en- 
 deavours to disclose and make known to His Majesty, His heirs or 
 successors, all treasons, or traitorous conspiracies and attempts 
 which I shall know to be against Him or any of them, and all this 
 I do swear without any equivocation, mental evasion or secret 
 reservation. So help me God.
 
 32 CRIMINAL CODE AND PROCEDURE. 
 
 CHAPTER II. 
 
 THE CRIMINAL CODE AND PROCEDURE THEREUNDER. 
 
 The Criminal Code of 1892, and as amended, was revised in 
 1906, and is found in the Revised Statutes of Canada, chapter 146. 
 By section 1 it is provided that the Act may be cited as the " Crim- 
 inal Code." This Revised Code has been amended in 1907, chs. 7, 
 8, 9, 45, in 1908, ch. 18, in 1909 by the Criminal Code Amendment 
 Act, 1909, ch. 9, in 1910 by chs. 10, 11, 12 and 13, in 1912, by 
 chs. 18, 19, in 1913 by ch. 13 and in 1914 by ch. 24. 
 
 The Revised Code is divided into XXV. parts, and contains 
 1,152 sections. 
 
 PART I. deals with Preliminary matters, as follows : Interpre- 
 tation, sees. 1-7; Application of the Code, sees. 8-15; Matters of 
 justification or excuse, sees. 16-68; Parties to offences, sees. 69-72. 
 
 PART II. Offences against Public Order, Internal and Ex- 
 ternal. Sees. 73-141. 
 
 PART III. Preservation of the Peace near Public Works, sees. 
 142-154. 
 
 PART IV. Offences against the Administration of Law and 
 Justice, sees. 155-196. 
 
 PART V. Offences against Religion, Morals and Public Con- 
 venience, sees. 197 to 239. 
 
 PART VI. Offences against the Person and Reputation, sees. 
 240 to 334. 
 
 PART VII. Offences against Rights of Property and Rights 
 arising out of Contracts and Offences connected with Trade, sees. 
 335 to 508. 
 
 PART VIII. Wilful and Forbidden Acts in Respect of Cer- 
 tain Property, sees. 509 to 545. 
 
 PART IX. Offences Relating to Bank Notes, Coin and Coun- 
 terfeit Money, sees. 546 to 569. 
 
 PART X. Attempts, Conspiracies, Accessories, sees. 570-575.
 
 CRIMINAL CODE. 33 
 
 PART XI. Jurisdiction. 
 Eules of Court, sec. 576. 
 General Jurisdiction, sees. 577-578. 
 Indictable Offences, sees. 579-583. 
 Special Jurisdiction, sees. 584-588. 
 
 PAET XII. Special Procedure and Powers, sees. 589-645. 
 
 PART XIII. Compelling Appearance of Accused before Jus- 
 tices, sees. 646-667. 
 
 PART XIV. Procedure on Appearance of Accused, sees. 668- 
 704. 
 
 PART XV. Summary Convictions, sees. 705-770. 
 
 PART XVI. Summary Trial of Indictable Offences, sees. 
 771-799. 
 
 PART XVII. Trial of Juvenile Offenders for Certain Indict- 
 able Offences, sees. 800-821. 
 
 PART XVIII. Speedy Trials of Indictable Offences, sees. 
 
 822-842. 
 
 PART XIX. Procedure by Indictment, sees. 843 to 1025. 
 PART XX. Punishment, Fines, etc., sees. 1026 to 1085. 
 
 PART XXI. Render by Sureties and Recognizances, sees. 
 1086-1119. 
 
 PART XXII. Extraordinary Remedies: Habeas Corpus, Cer- 
 tiorari, etc., sees. 1120-1132. 
 
 PART XXIII. Returns, sees. 1133-1139. 
 
 PART XXIV. Limitation of Actions, sees. 1140-1151. 
 
 PART XXV. Sec. 1152 and Forms Nos. 1-76. 
 
 It will not be necessary, for the purposes of this work, to deal 
 specifically with any of the Parts of the Code except those that 
 relate to, or bear upon, procedure before Justices of the Peace and 
 Police Magistrates. 
 
 C.C.P. 3
 
 34 CRIMINAL CODE, PABT I. 
 
 Incidentally of course, matters governed by other Parts of the 
 Code will be referred to. We will, however, deal principally with 
 Parts XI. to XVI. 
 
 Parts II. to X. concern crimes and offences, defining their 
 nature and providing for their punishment. 
 
 The reader is referred to the annotated works on the Criminal 
 Code of Mr. Orankshaw, Mr. Tremeear and Mr. Lear for further 
 elucidation upon those and other Parts of the Code. 
 
 There are, however, several sections of the Code which have a 
 general application to criminal law, which, it might be well to 
 notice and consider. 
 
 PART I. 
 
 General. 
 APPLICATION or THIS ACT. 
 
 8 Nothing in this Act shall affect any of the laws relating to the 
 government of His Majesty's land and naval forces. 
 
 9. Except in so far as they are inconsistent with the Northwest Ter- 
 ritories Act and amendments thereto, as the same existed immediately 
 before the first day of September, one thousand nine hundred and five, 
 the provisions of this Act extend to and are in force in the provinces of 
 Saskatchewan and Alberta, the Northwest Territories, and. except in so 
 far as inconsistent with the Yukon Act, the Yukon Territory. 
 
 By "The Northwest Territories Act/' E. S. C. 1906, c. 62, 
 sec. 12, it is provided that the laws of England relating to civil 
 and criminal matters, as the same existed on the 15th day of 
 July, 1870, shall be in force in the Territories in so farjis appli- 
 cable, and not repealed or altered by any Act of the Parliament of 
 the United Kingdom or the Parliament of Canada, or by any 
 ordinance of the Territories, subject to the provisions of the Act. 
 
 And by section 36 of the same Act, " The procedure in criminal 
 cases shall conform as nearly, as may be to the procedure existing 
 in like cases in England on the 15th July, 1870." 
 
 APPLICATION OF THE CRIMINAL LAW OF ENGLAND. 
 ONTARIO. 
 
 10. The criminal law in England, as it existed on the seventeenth 
 day of September, one thousand Seven hundred and ninety-two, in so ^far 
 as it has not been repealed by any Act of the Parliament of the United 
 Kingdom having force of law in the province of Ontario, or by any Act
 
 CRIMINAL LAW OF ENGLAND IN CANADA. 35 
 
 of the Parliament of the late province of Upper Canada, or of the 
 province of Canada, still having force of law, or by this Act or any 
 other Act of the Parliament of Canada, and as altered, varied, modified 
 or affected by any such Act, shall be the criminal law of tfie province 
 of Ontario. 
 
 QUEBEC. 
 
 The Province of Quebec, from the signing of the Treaty of 
 Paris, 10th February, 1763, by which Prance ceded Canada to 
 Great Britain, until 1774, was governed by the constitution created 
 by letters patent under the Great Seal of Great Britain. The pro- 
 vince, during this period, remained in an unsettled state, owing to 
 the uncertainty that prevailed as to the laws actually in force. 
 
 In October, 1774, the new .constitution became law. This is 
 contained in what is known as the " Quebec Act," 14 Geo. III. 
 ch. 83. 
 
 By this Act it was provided that, so far as property and civil 
 rights were concerned, they were to be governed by the French 
 Code of Civil Procedure. But the criminal law of England should 
 alone obtain, to the exclusion of every other Criminal Code which 
 might have prevailed before 1764. The "Quebec Act" extended 
 the boundaries of the Province of Quebec, as denned in the pro- 
 clamation of 1763. The province was extended on the south and 
 west to the frontier of New England, Pennsylvania, New York 
 Province, the Ohio and the left bank of the Mississippi, and on 
 the north to the Hudson's Bay Territory. This included the 
 territory afterwards comprised within the limits of Upper Canada, 
 now Ontario. 
 
 By the Constitutional Act of 1791, 31 Geo. III., ch. 31, Canada 
 was divided into two provinces, Upper and Lower Canada. By 
 this Act the Criminal law of England was to obtain in both pro- 
 vinces. 
 
 The first meeting of the Legislature of Upper Canada was held 
 at Newark (now Niagara), on the 17th September, 1792, and was 
 formally opened on that day by Lieutenant-Governor Simcoe. 
 
 This, it will be noticed, is the day mentioned in the above sec- 
 tion (10). It is the criminal law 1 of England as it existed on 
 that day, &c., . . . that shall be the criminal law of the Pro- 
 vince of Ontario. 
 
 This was declared by an Act of the Legislature of Upper 
 Canada, 40 Geo. HI., ch. 81, passed in July, 1800.
 
 36 CRIMINAL LAW OF ENGLAND IN CANADA. 
 
 The provisions of sec. 10 of the Code are therefore a simple re- 
 affirmation of 40 Geo. III., ch. 81, U. C., except in so far as the 
 criminal law of England on the 17th September, 1792, has been 
 repealed by any Act, &c., &c. 
 
 The English Champerty laws were introduced and continued in 
 Upper and Lower Canada, now Quebec and Ontario, under the 
 Quebec Act, 1774. 
 
 See Meloche v. Deguire, (1903) 8 C. C. C. 89. 
 
 This case, however, has been held not to be applicable in Mani- 
 toba : Thomson v. Wishart, 19 M. R. 340, 16 C. C. C. 446. 
 
 Maintenance is an indictable offence in the Province of Ontario. 
 Hopkins v. Smith, (1901) 1 0. L. R. 659. 
 
 BRITISH COLUMBIA. 
 
 11. The criminal law of England as it existed on the nineteenth 
 day of November, one thousand eight hundred and fifty-eight, in so far 
 as it has not been repealed by any ordinance or Act still having the 
 force of law of the colony of British Columbia, or the colony of 
 Vancouver Island, passed before the union of the said colonies, or of the 
 colony of British Columbia passed since such union, or by this Act or 
 any other Act of the Parliament of Canada, and as altered, varied, 
 modified or affected by any such ordinance or Act, shall be the criminal 
 law of the province of British Columbia. 
 
 PROVINCE OF MANITOBA. 
 
 12. The criminal law of England as it existed on the fifteenth day 
 of July, one thousand eight hundred and seventy, in so far as it & 
 applicable to the province of Manitoba, and in so far as it has not been 
 repealed, as to the Province, by any Act of the Parliament of the United 
 Kingdom, or by this Act or any other Act of the Parliament of Canada, 
 and as altered, varied, modified or affected, as to the province, by any 
 such Act, shall be the criminal law of the province of Manitoba. See 
 Thomson v. Wishart, supra. 
 
 EFFECT OF ACT ON REMEDIES. 
 
 13. No civil remedy for any act or omission shall be suspended or 
 affected by reason that such act or omission amounts to a criminal 
 offence. 
 
 At common law (apart from statutory provisions) a person 
 may be exposed for one and the same act to an action for damages 
 to the injured person, and a criminal proceeding for the breach of 
 the peace, and sometimes statutes specially provide that an offender 
 shall be liable both to civil and criminal proceedings. 
 
 At the same time it is right and is the practice to take the one 
 matter into consideration in proceeding on the other : for instance, 
 when an action is pending judgment will not be given on an in- 
 formation for assault. R. v. Mahon, 4 A. & E. 575.
 
 EFFECT OF CODE ON CIVIL REMEDIES. 37 
 
 Technically speaking, in such a case there is no estoppel on the 
 justices from proceeding unless, perhaps, where the proceeding be- 
 fore them, though nominally criminal, is actually for the vindication 
 of the party injured rather than for the ends of justice, But the 
 safe practical rule for the justices to act upon would seem to be 
 this, when it appears that civil proceedings are pending in respect 
 of the same matter, to dismiss the complaint, or pass a nominal 
 sentence, unless there has been an outrage on public order: or 
 unless by statutory provisions (as in the case of trade marks) the 
 civil and criminal proceedings are not to interfere with each other. 
 Should the second proceeding be merely to indemnify the com- 
 plainant from an alleged wrong a previous civil decision as to the 
 same matter will be conclusive; thus judgment against a servant 
 in the County Court for a wrongful dismissal is an answer to an 
 application to justices to enforce payment of wages: Paley, 8th 
 ed., pp. 171-172; Routledge v. Hislop, 29 L. J. M. 0. 90. 
 
 The following cases illustrate the application of the general 
 principles of res judicata: Pease v. Chaytor, 3 B. & S. 620; Hind- 
 ley v. Haslam, 39 Q. B. D. 81 ; Wells v. Abrahams, L. E. 7 Q. B. 
 554; Schol v. Kay, 5 Allen N. B. 244; Livingstone v. Massey, 
 23 U. C. R. 156; Taylor v. McCullough, 8 0. R. 309; Tremblay 
 v. Bernier, 21 S. C. R. 309 ; Brown v. Dolby, 7 U. C. R. 162. 
 
 A constitutional question has been raised in reference to this 
 section as to whether or not it is an interference with provincial 
 rights. See Paquet v. Lavoie, (1898) 6 C. 0. C. 314. 
 
 In Doyle v. Bell, (18,84) 11 A. R. 326, it was held that the 
 jurisdiction of the provincial legislature over " property and civil 
 rights " does not preclude the Parliament of Canada from giving 
 to an informer the right to recover by a civil action a penalty im- 
 posed as a punishment for bribery at a Dominion election. The 
 Dominion Election Act, 1874, provided that all penalties and for- 
 feitures (other than fines in cases of misdemeanour) imposed by 
 the Act shall be recoverable, with full costs of suit, by any person 
 suing for the same in an action of debt in any Court in the pro- 
 vince having competent jurisdiction, and it was held that this 
 enactment was valid. 
 
 As to dismissal of complaint for a common assault being a re- 
 lease from all further proceedings, civil and criminal, see sections 
 732, 733, and 734 of the Code, and Crankshaw's notes to section 
 734.
 
 38 CRIMINAL CHARGE CONSTITUTIONAL LAW. 
 
 "CRIMINAL CHARGE/' WHAT INCLUDED IN THIS EXPRESSION. 
 
 Provincial legislatures, in dealing with any subject assigned to 
 the Provinces by the B. N. A. Act, may, by paragraph 15 of sec- 
 tion 92 of the Act, include provisions of a criminal character, 
 and an accusation under any such provision is a " criminal 
 charge," notwithstanding paragraph 27 of section 91 of the Act: 
 Re McNutt, 21 C. C. C. 157. 
 
 CONSTITUTIONAL LAW. 
 
 A provincial legislature has no jurisdiction to make laws pro- 
 hibiting the maintenance of disorderly houses and prescribing 
 punishment therefor: Upton v. Broiun, 21 C. C. C. 190. 
 
 A provincial statute, passed in 1907 in Quebec, prohibiting 
 theatrical performances on Sunday, was held ultra vires as crim- 
 inal law legislation within the exclusive jurisdiction of the Dom- 
 inion Parliament: Audette v. Daniel, 21 C. C. C. 403, and 
 similarly in the case of an Act prohibiting a restaurant keeper 
 from selling meals on Sunday: R. v. Marsh, 21 C. C. C. 413, 
 following Attorney-General v. Hamilton Street Railway, [1903] 
 A. C. 524, 7 C. C. C. 326. 
 
 See also R. v. Laity, 21 C. C. C. 417, and Ex parte Flanagan, 
 5 C. C. C. 82. 
 
 FELONY AND MISDEMEANOUR. 
 
 14. The distinction between felony and misdemeanour is abolished, 
 and proceedings in respect of all indictable offences, except so far as they 
 are herein varied, shall be conducted in the same manner. 
 
 The Criminal Code of 1892 was intended to make complete 
 and exhaustive provision as to the subjects with which it deals, in 
 so far at all events as its provisions relate to procedure. 
 
 The common law procedure as to use of depositions taken upon 
 a preliminary inquiry at the trial is superseded by the provisions 
 of the Code. See section 999. R. v. Snelgrove, (1906) 12 C. C. 
 C. 189. 
 
 When a certain practice would have been permissible in case 
 of misdemeanour, and not permissible in case of felony, the prac- 
 tice has been to apply the rule as in cases of misdemeanour, and 
 such is the intention of the Code. R. v. Fox, (1903) 7 C. C. C.
 
 OFFENCES PUNISHABLE UNDER DIFFERENT ACTS. 39 
 
 457. See also R. v. Cameron, (1897) 1 C. C. C. 169; Ex parie 
 Fortier, 6 C. C. C. 191. 
 
 OFFENCES PUNISHABLE UNDER DIFFERENT ACTS. 
 
 15. Where <an act or omission constitutes an offence, punishable on 
 summary conviction or on indictment, under two or more Acts, or both 
 under an Act and at common law, the offender shall, unless the con- 
 trary intention appears, be liable to be prosecuted and punished under 
 either or any of such Acts, or at common law, but shall not be liable to 
 be punished, twice for the same offence. 
 
 The accused was an officer in the public service. He was found 
 guilty of misbehaviour in office, which is an indictable offence at 
 common law. Held, that to constitute the offence it was not 
 essential that pecuniary damage should have resulted to the public 
 by reason of such irregular conduct, or that the defendant should 
 have acted from corrupt motives. R. v. Arnoldi, 23 0. E. 201. 
 
 The common law jurisdiction as to crime is still operative, 
 notwithstanding the Code, and even in cases provided for by the 
 Code, unless there is such repugnancy as to give prevalence to the 
 latter law. R. v. Cole, (1902) 5 C. C. C. 330. 
 
 The rule is that, if a common law offence is made subject to 
 greater punishment by statute, it may still be proceeded against as 
 a common law offence, but if a common law offence is made by 
 statute punishable by a summary conviction both remedies exist. 
 Hamilton v. Massie, 18 0. E. 585. 
 
 A person who has been convicted of an assault by a Court of 
 Summary Jurisdiction, but has been discharged without any 
 sentence, fine or imprisonment, or given security to be of good 
 behaviour, cannot afterwards be convicted on an indictment for 
 the same assault. R. v. Miles, 24 Q. B. D. 423, and see R. v. King, 
 [1897] 1 Q. B. 214, 66 L. J. Q. B. 87. 
 
 A summary conviction for assault is no bar to an indictment 
 for manslaughter when the party assaulted has subsequently died 
 from the effect of the blow. R. v. Morris, L. E. 1 C. 0. E. 90, 36 
 L. J. M. C. 84. 
 
 But a man who has been either acquitted or convicted before 
 justices for assault cannot afterwards be indicted for felon'ous 
 wounding in the same transaction. R. v. Walker, 2 M. & E. 446, 
 and see Wemyss v. Hopkins, L. E. 10 Q. B. 378. 
 
 A conviction before a competent tribunal and unreversed will 
 operate as an estoppel in a criminal proceeding upon the points 
 decided by it. R. v. Hougliton, 1 El. & B. 501.
 
 40 AUTREFOIS ACQUIT OR CONVICT. 
 
 i 
 
 A police officer may be liable in an action for damages for 
 unlawfully arresting the plaintiff without a warrant in a case 
 where a warrant was necessary, although the plaintiff was after- 
 wards convicted on the charge, and such conviction stood unre- 
 versed: Justice v. Gosling, 21 L. J. C. P. 94. 
 
 At common law a former conviction or acquittal, whether on 
 a criminal summary proceeding or an indictment, will be an an- 
 swer to an information of a criminal nature before justices founded 
 on the same facts. The true test to shew that such previous 
 conviction or acquittal is a bar is whether the evidence neces- 
 sary to support the second proceeding would have been sufficient 
 to procure a legal conviction on the first. Archbold Cr. PI., 24th 
 ed., 177: R. v. Clark, 1 B. & B. 473. 
 
 Where a judgment is reversed on writ of error the prisoner 
 cannot plead autrefois acquit or autrefois convict in bar; he never 
 having been in jeopardy in that case and a judgment reversed 
 being the same as no judgment. R. v. Drury, 3 C. & K. 193, 18 
 L...J. M,. C. 189. 
 
 Where a man is indicted for an offence and acquitted'he can- 
 nof'be again indicted for the same offence, provided the first 
 indictment were such that he could have been lawfully convicted 
 on it- 
 
 iFsb indicted a second time_he may plead autrefois jicguit. 
 Russell (7th Ed.), Vol. II., p. 1982. 
 
 " The defence does not arise on a plea of autrefois acquit, but 
 on the well established rule at common law that, where a person 
 has been convicted and punished for an offence by a Court of ooon- 
 . petent jurisdiction, transit in rem judicatam, that is, the convic- 
 tion shall be a bar to all further proceedings for the same offence, 
 and he shall not be punished again for the same matter." Black- 
 burn, J., at p. 381, in Weymss v. Hopkins, (1875) L. R. 10 Q. B. 
 378. 
 
 The principle of res judicata applies equally to an acquittal as 
 to a conviction. 
 
 When a conviction has been quashed in certiorari proceedings 
 for want of sufficient evidence upon wh'ch the magistrate could 
 properly convict, the person convicted cannot be again prosecuted 
 for the same offence or on any charge founded on the same facts : 
 R. v. Weiss (No. 2), 22 C. C. C. 42, reversing R, v. Weiss (No. 
 1), 21 C. C. C. 438.
 
 AUTREFOIS ACQUIT OR CONVICT. 41 
 
 Where a person has been acquitted by a Court of competent 
 jurisdiction, the acquittal is a bar to all further proceedings to 
 punish him for the same matter, although a plea of autrefois 
 acquit may not be allowed because of the different nature of the 
 charges. R. v. Quinn, (1905) 10 C. C. C. 412. 
 
 An acquittal of a charge of an attempt to commit a crime is 
 not a bar to a prosecution on a charge of conspiracy with others 
 to commit the same crime: R. v. Weiss (No. 2), 22 C. C. C. 42. 
 
 The dismissal of a prior charge under the Canada Temperance 
 Act ic which the offence was laid as between certain dates is not 
 necessarily a bar to a subsequent prosecution for a like offence 
 committed within the same period of time, but the question of 
 identity of offence is for the magistrate to decide : Ex parte Flana- 
 gan, 5 C. C. 0. 82; R. v. Johnson, 17 C. 0. C. 172; R. v. Mitchell, 
 19 C. C. C. 113. 
 
 At the trial for an offence punishable on summary conviction, 
 after all the evidence for the prosecution had been heard and the 
 case closed, the magistrate, upon objection taken that material 
 proof was lacking, allowed the prosecutor to withdraw thft charge 
 and lay a new information for the same offencjs. 
 
 Held, that prohibition should be granted against the magis- 
 trate enforcing- a p.nnvift.irm after a trial npr. cvoh TIPW informa- 
 tion: R. v. Chew Deb. 21 C. C. C. 20. 
 
 A charge of theft does not impliedly include that of receiving 
 stolen goods. An accused, who is acquitted of theft, remains sub- 
 ject to the accusation of receiving, and cannot, by reason of his 
 acquittal, set. up the defence of autrefois acquit. R. v. G'roulx, 
 (1908) Q. E. 18 K. B. 118; 15 C. C. C. 20. 
 
 A conviction for creating a disturbance in a public street based 
 on an assault will prevent a subsequent prosecution by the person 
 injured for the same assault, although the former charge was laid 
 by the police : R. v. Mclntyre, 21 C. C. C. 216. 
 
 COMMON LAW JUSTIFICATION OR EXCUSE. 
 
 16. All rules and principles of the common law which render any cir- 
 cumstances a justification or excuse for any act, or a defence to any charge, 
 shall remain in force and be applicable to any defence to a charge under 
 this Act except in so far as they are hereby altered or are inconsistent 
 herewith. 
 
 " The Common Law is reason dealing by the light of experience 
 in human affairs." 1 Blackstone, J+72.
 
 42 THE CRIMINAL COMMON LAW. 
 
 Common Law, in the widest sense of the word, is that part of 
 the law of England which, before the Judicature Acts, was admin- 
 istered by the common law tribunals as opposed to equity, or that 
 part of the law of England which was administered by the Court 
 of Chancery. Sweet's Law Diet., 193. 
 
 By the Common Law one meant those maxims, principles and 
 forms of judicial proceedings which have no written law to pre- 
 scribe or warrant them, but which, founded on the law of nature 
 and the dictates of reason, have, by usage and custom, become 
 interwoven with the written laws, and by such incorporation form 
 a part of the municipal code of each state or nation which has 
 emerged from the loose and erratic habits of savage life to civiliza- 
 tion, order and a government of law. Am. & Eng. Encyc., Vol. 6, 
 269. 
 
 Parliament never intended to repeal the Common Law, except 
 in so far as the Code either expressly or by implication repeals it. 
 So that, if the facts stated in an indictment constitute an indict- 
 able offence at Common Law, and the offence is not dealt with in 
 the Code, then unquestionably an indictment will lie at Common 
 Law; even if the offence has been dealt with in the Code, but 
 merely by way of statement of what is law, then both are in force. 
 SEDGEWICK, J., at p. 405, in Union Colliery v. The Queen, 4 C. C. 
 C. 400, 31 S. C. R. 81. 
 
 See remarks of Sir John Thompson in his speech in intro- 
 ducing the bill quoted in the last chapter, and R. v. Durocher, 
 21 C. C. C. 382, as to offences not provided for in the Code. 
 
 It is a misdemeanour at Common Law to incite a witness to 
 give particular evidence when the inciter does not know whether it 
 is true or false, and it is not necessary to prove that the evidence 
 was in fact given, or was actually false to the knowledge of the 
 witness. R. v. Cole, (1902) 5 C. C. C. 330. 
 
 Where the charge in respect of which the accused person has 
 been committed for trial is an offence at Common Law not pro- 
 vided for by the Code and formerly a misdemeanour, one Justice 
 of the peace may commit for trial and admit to bail as at Common 
 Law. Ibid., and see R. v. Carlile, 3 B. & Aid. 161. 
 
 There is at Common Law, apart from any statutory authority, 
 inherent power in the Court to order one or more grand juries to 
 be summoned. R. v. McGuire, 4 C. C. C. 12.
 
 THE CODE IN RELATION TO INFANTS. 43 
 
 INFANTS. 
 
 17. No person shall be convicted of an offence by reason of any 
 act or omission of such person when under the age of seven years. 
 
 18. No person shall be convicted of an offence by reason of an act 
 or omission of such person when of the age of seven, but under the are 
 of fourteen years, unless he was competent to know the nature and 
 consequences of his conduct, and to appreciate that it was wrong. 
 
 These two sections will be considered together. Infants under 
 the age of discretion ought not to be punished by any criminal 
 prosecution whatever. 1 Hawkins, P. 0. 2. 
 
 Under seven years of age indeed an infant cannot be guilty of 
 felony, for then a felonious discretion is almost an impossibility in 
 nature, but at eight years old he may be guilty of felony. 
 
 No one under fourteen years of age, though an infant, shall 
 be prima facie adjudged to be doll capax; yet if it appears to the 
 Court and jury that he was doli capax, and could discern between 
 good and evil, he may be convicted and suffer. Thus a girl of thir- 
 teen has been burnt for killing her mistress; and one boy of ten 
 and another of nine years old, who had killed their companion, 
 have been sentenced to death, and he of ten actually hanged; be- 
 cause it appeared upon their trials that the one hid himself, and 
 the other hid the body he had killed, which hiding manifested a 
 consciousness of guilt and a discretion to discern between good 
 and evil. 2 Blackstone, pp. 22 and 23. 
 
 But in all such cases the evidence of that malice, which is to 
 supply age, ought to be strong and clear beyond all doubt and 
 contradiction. Ibid. 
 
 Where a child between the age of seven and fourteen years is 
 indicted for felony, two questions are to be left to the jury : first, 
 whether he committed the offence; and secondly, whether at the 
 time he had a guilty knowledge that he was doing wrong. R. V. 
 Owen, 4 C. & P. 236, and see Arch. PI. & Ev., 24th ed., p. 9. 
 
 The accused being under fourteen years of age is, by the com- 
 mon law of England, assumed to be physically incompetent to 
 commit the crime with which he is charged (Sodomy under sec. 
 220), and I find no provisions in the Code altering the common 
 law in this respect. Section 10 (now 18) of the Code, in my opin- 
 ion, refers solely to the mental capacity to distinguish between 
 right and wrong, and not to physical ability to commit crime. 
 RITCHIE, J., at p. 14, in R. v. Hartlen, (1898) 2 C. C. C. 12.
 
 44 THE CODE IN RELATION TO INFANTS. 
 
 As to incapacity for a child under fourteen to commit rape, 
 see sec. 298 (2), of the Code. 
 
 An infant under the age of fourteen years is presumed by law 
 unable to commit rape, and therefore, it seems, cannot be guilty 
 of it; and, though in other felonies malitia supplet cetatem, in 
 some cases, as hath been shewn, yet it seems as to this fact the law 
 presumes him impotent as well as wanting discretion. 1 Hale, 
 P. C. 630. 
 
 A charge of perjury cannot be sustained against a boy under 
 fourteen without proof of guilty knowledge of wrong doing. R. 
 v. Carvery, (1906) 11 C, C. C. 331. 
 
 A child under fourteen, indicted for murder, must be proved 
 conscious of the nature of the act. E. v. Vamplew, 3 F. & F. 
 520. 
 
 A boy under fourteen years of age cannot be convicted of hav- 
 ing carnal knowledge of a girl under fourteen years (see Code, s. 
 301) ; or of any of the offences where carnal connection with a 
 woman is a necessary ingredient of the offence, or any attempt fo 
 commit rape, or any t>f the like mentioned offences. R. v. Waite, 
 [1892] 2 Q. B. 600. 
 
 Evidence of a child of tender years who is tendered as a wit- 
 ness may be received without oath. See section 1003 of the Code. 
 
 The child must, in the opinion of the Judge or Justice, be 
 possessed of sufficient intelligence, and understand the duty of 
 speaking the truth, to justify the reception of the evidence. No 
 case shall be decided upon such evidence alone, and such evidence 
 must be corroborated by some other material evidence. See sec. 
 16, Canada Evidence Act. 
 
 As to proof of age of a child, boy or girl, and inference as fco 
 age from appearance, see section 984 of the Code. 
 
 INSANITY. 
 
 19. No person shall be convicted of an offence by reason of an Act 
 done or omitted by him when labouring under natural imbecility, or 
 disease of the mind, to such an extent as to render him incapable of 
 appreciating the nature and quality of the act or omission, and of knowing 
 that such an act or omission was wrong. 
 
 2. A person labouring under specific delusions, but in other respects 
 sane, shall not be acquitted on the ground of insanity, under the Tiro- 
 visions hereinafter contained, unless the delusion*? caused him to bplipve 
 in the existence of some state of things which, if it existed, would justify 
 or excuse his act or omission. 
 
 3. Every one shall be presumed to be sane at the time of doing or 
 omitting to do any Act until the contrary is proved.
 
 INSANITY. 45 
 
 Blackstone, Vol. 4, page 4, says: 
 
 " In criminal cases, therefore, idiots and lunatics are not 
 chargeable for their own acts, if committed when under these 
 incapacities; no, not even for treason itself. Also, if a man in 
 his sound memory commits a capital offence, and before arraign- 
 ment for it he becomes mad, he ought not to be arraigned for it, 
 because he is not able to plead to it with that advice and caution 
 that he ought. And if after he has pleaded the prisoner becomes 
 mad, he shall not be tried, for how can he make his defence? If 
 after he be tried and found guilty he loses his senses before judg- 
 ment, judgment shall not be pronounced, and if after the judg- 
 ment he becomes of an insane memory execution shall be stayed ; 
 for peradventure, says the humanity of the English law, had 
 the prisoner been of sound memory he might have alleged some- 
 thing in stay of judgment or execution." 1 Hale, P. C. 84. 
 
 Every person at the age of discretion is, unless the contrary be 
 proved, presumed by law to be sane and accountable for his actions. 
 But, if there be an incapacity or defect of the understanding, as 
 there can be no consent of the will, so the act cannot be culpable. 
 This species of non-volition is either natural, accidental or affected, 
 it is either perpetual or temporary, and may be reduced to three 
 general heads: 1. Idiocy or natural fatuity. 2. Adventitious in- 
 sanity. 3. The vice of drunkenness which produces a perfect, 
 though temporary, frenzy or insanity, usually denominted demen- 
 tia affectata* or acquired madness. Arch. PL & Ev., 24th ed., 
 p. 11. 
 
 The vice of drunkenness will not excuse the commission of any 
 crime, and an offender under the influence of intoxication can de- 
 rive no privilege from a madness voluntarily contracted, but is 
 answerable to the law equally as if he had been in the full posses- 
 sion of his faculties at the time. 1 Hale, 82; Co. Litt. 247; 1 
 Hawk, c. 1, 56. Although it has been said that, upon an indict- 
 ment for murder, the intoxication of the defendant may be taken 
 into consideration as a circumstance to shew that the act was not 
 premeditated. R. v. Grindley, 1 Eussell on Crimes, 88; R. v. 
 Thomas, 7 C. & P. 817; R. v. Meakin, Id. 297; but see R. v. 
 Carroll, Id. 145, overruling R. v. Grindley, supra. 
 
 When the crime alleged is such that the intention of the accused 
 is one of its constituent elements, the jury may look at the fact 
 that he was in drink in considering whether he formed the intent 
 necessary to constitute the crime. STEPHEN, J., in R. v. Doherty, 
 16 Cox C. C. 306.
 
 46 INSANITY. 
 
 Delirium tremens caused by drinking, if it produces such a 
 degree of madness, although only temporary, as to render a person 
 incapable of distinguishing right from wrong, relieves him from 
 criminal responsibility for any act committed by him while under 
 its influence. R. v. Davis, (1881) 14 Cox 563. 
 
 As to intoxication of accused being evidence of incapacity to 
 understand the quality of his act, see R. v. Ely the, (1909) 15 C. 
 C. C, 224:. 
 
 If the accused sets up insanity he must accept the onus pro- 
 bandi. R. v. Layton, (1849) 4 Cox C. C. 149, that is, the burden 
 of proof of insanity is upon the defence. McNaghten's Case, 10 
 Cl. & F. 200 ; R. v. Stokes, 3 C. & K. 185. 
 
 It seems clear, however, that, to excuse a man from punish- 
 ment on the ground of insanity, it must be proved distinctly that 
 he was not capable of distinguishing right from wrong at the 
 time he did the act, and did not know it to be an offence against 
 the laws of God and nature. See R. v. Offord, 5 C. & P. 168. 
 
 Where the intellectual faculties are sound, mere moral insanity, 
 where a person knows perfectly well what he is doing, and that 
 he is doing wrong, but has no control over himself, and acts under 
 an uncontrollable impulse, does not render him irresponsible. R. 
 V. Burton, 3 F. & F. 772. 
 
 Whether the prisoner was sane or insane at the time the act 
 was committed, is a question of fact triable by the jury, and de- 
 pendent upon the previous and contemporaneous acts of the party. 
 
 Upon a question of insanity a witness of medical skill may be 
 asked whether, assuming certain facts, proved by other witnesses, 
 to be true, they in his opinion indicate insanity. R. v. Frances, 4 
 Cox C. C. 57, per ALDERSON, B., and CRESWELL, J. R. v. Searle, 
 1 M. & Rob. 75. 
 
 Counsel will not be allowed, upon a question of insanity, to 
 quote in his address to the jury the opinion of medical writers as 
 expressed in their books. R. v. Crouch, 1 Cox 94; R. v. Taylor, 13 
 Cox 77, per BRETT, J. 
 
 See the answers of the Judges to questions propounded to them 
 by the House of Lords in R. v. McNaghten, ubi supra. 
 
 A Grand Jury have no authority by law to ignore a bill upon 
 the ground of insanity; it is their duty to find the bill, and then 
 the Court, either on arraignment or trial, may order the detention 
 of the prisoner during the pleasure of the Crown. R. v. Hodges. 
 8 C. & P. 195.
 
 INTENT MENS EEA. 47 
 
 As to the defence of insanity raised on the trial of an indict- 
 ment, see sees. 966 to 970 of the Code. 
 
 A case may be reserved at the instance of the Crown upon a 
 question of law as to whether there was any evidence of insanity 
 to support the jury's verdict of not guilty upon that ground. R. 
 v. Phinney (No. 1), (1903) 6 C. C. C. 469. 
 
 A remand by a magistrate in a preliminary inquiry must be 
 by warrant if made for more than three clear days, and it is essen- 
 tial that 'he accused should be personally present before the 
 magistrate. A remand for eight days for the purpose of a medical 
 examination of the accused as to sanity cannot be made on the 
 mere suggestion of the police officer without bringing the accused 
 personally before the magistrate. Re Sarault, (1905) 9 C. C. C. 
 448. 
 
 But, if the accused is brought personally before the magis- 
 trate, he may toe remanded for an indefinite time for the purpose 
 of an inquiry into his sanity. R. v. Bouchard, 20 C. C. C. 95. 
 
 Insanity may be proved without medical testimony, and may 
 be inferred from the behaviour of the accused and facts proved. 
 R. v. Dart, 14 Cox C. C. 143. 
 
 As to detention, under warrant of the Lieutenant-Governor, 
 of a prisoner acquitted oh ground of insanity, see Re Duclos, Q. 
 E. 32 S. C. 154, 12 C. C. C. 278. 
 
 INTENT MENS EEA. 
 
 There is probably no maxim known to our law of more bene- 
 ficial operation than that which requires a criminal intent in order 
 to fix a criminal responsibility. It is generally expressed in the 
 words " actus non facit reum, nisi mens sit rea," and, while it is of 
 very limited application in civil proceedings, it is almost univer- 
 sally applied to those which are of a criminal nature. Paley, 8th 
 ed., pp. 172-73. 
 
 An offence implies intention in the offender, and " wilfully " 
 is in general equivalent to "knowingly and fraudulently." Per 
 ERLE, J., in R. v. Badger, 6 El. & Bl. 137. 
 
 Where there must be mens rea to constitute an offence, an 
 honest claim of right, however absurd, will frustrate a summary 
 conviction; but, when the absence of mens rea is not necessarily a 
 defence, the person who sets up a claim of right must shew some 
 grounds for its assertion and, if he fails to do so, is liable to be
 
 48 INTENT MENS REA. 
 
 convicted of the offence charged against him. Watkins v. Major, 
 L. R. 10 C. P. 662, 44 L. J. M. C. 164. 
 
 As a general rule, no penal consequences are incurred where 
 there has been no personal neglect or default, and mens rea is 
 essential to an offence under a penal enactment unless a contrary 
 intention appears by express language or necessary inference. 
 Dickenson v. Fletcher, L. R. 9 C. P. 1, 43 L. J. M. C. 25; Aber- 
 dare Local Board v. Hammett, L. R. 10 Q. B. 162, 44 L. J. M. 
 C. 49. 
 
 " I do not think that the maxim as to the mens rea has so 
 wide an application as it is sometimes considered to have. In 
 old times and as applicable to common law, and to earlier statutes, 
 the maxim may have been of general application; but a difference 
 has arisen owing to the greater precision of modern statutes. It is 
 impossible now to apply the maxim generally to all statutes, and it 
 is necessary to look at the object of each act to see whether and how 
 far knowledge is of the essence of the offence charged." STEPHEN, 
 J., in Cundy v. Lecocq, 13 Q. B. D. 207, and see Christie v. 
 Cooper, 69 L. T. 708. 
 
 Under ordinary circumstances an offence implies a mens rea, 
 but there are exceptions, and in this case the question is whether, 
 for the offence created by this statute, the knowledge of the person 
 who is the seller in fact, and who is the agent of the licensee to 
 sell, is sufficient -to justify the conviction of the licensee. LORD 
 ALVERSTOXE, in Emery v. Nolloth, [1903] 2 K. B. 269, 72 L. J. 
 K. B. 620 ; and see Brooks v. Mason, [1902] 2 K. B. 743, 72 L. 
 J. K. B. 19, and R. v. Quirk, 16 C. C. C. 391. 
 
 " It is a general principle of our criminal law that there must 
 be, as an essential' ingredient in a criminal offence, some blame- 
 worthy condition of mind; sometimes it is negligence, sometimes 
 it is malice, sometimes guilty knowledge, but, as a general rule, 
 there must be something of that kind which is designated by the 
 expression mens rea. Moreover, it is a principle of our criminal 
 law that the condition of mind of the servant is not to be im- 
 puted to the master," &c., &c. Per CAVE, J., at p. 741, in Chis- 
 holm v. Doulton, (1889) 22 Q. B. D. 736, approved in Somerset 
 v. Wade, [1894] 1 Q. B. p. 576; and see also Massey v. Morris, 
 [1894] 2 Q. B. 412; Bank of New South Wales v. Piper, (1897) 
 66 L. J. P. C. p. 76, and R. v. A. & N., 16 C. C. C. 381. 
 
 Upon a oharsre under the fishery regulations of having sturgeon 
 in possession of the accused, under the size prescribed by law, 
 the doctrine of mens rea applies, and a conviction of the master
 
 INTENT AND MENS REA. 49 
 
 for his servant having possession of the fish without his master's 
 authority, or knowledge or connivance, was quashed. R. v. 
 V action, (1900) 3 C. C. C. 558. 
 
 Where the state of mind or intention is made an element by the 
 statute, e.g., where a statute inflicts a penalty on any person 
 wantonly doing a certain act, and such act is done by the agent of 
 an incorporated company, some knowledge of the particulars ought 
 to be brought home to the manager to render him liable. Small 
 V. Warr, 47 J. P. 20. 
 
 A guilty mind is necessarily implied as an essential ingredient 
 of 'bigamy under the Code ; if, therefore, the accused had an honest 
 and reasonable belief that she wa& unmarried before she went 
 through the form of marriage (the subject of the charge) it would 
 be a good defence. R. v. Sellars, (1905) 9 C. C. C. 153. 
 
 On a trial of a charge of theft accomplished by a peculiar 
 method of presenting a bank bill of large denomination in making 
 a small purchase, and managing to receive back too much change. 
 Held, that evidence of a similar practice in other cases was re- 
 ceivable to shew criminal intent. R. v. McBerny, 29 N. S. R. 
 327, 3 C. C. C. 339. See also E. v. Beardsley, 18 C. C. C. 389, 
 and R. v. Wilson, 21 C. C. C. 105. 
 
 Evidence of other similar acts tending only to shew that the 
 prisoner had a propensity to commit the crime charged is not 
 admissible. R. v. Iman Din, 18 C. C. C. 82, and R. v. Paul, 19 C. 
 C. C. 339. 
 
 Defendant was convicted of selling apples packed in packages 
 in which the face surface gave a false representation of the con- 
 tents of the packages. The mere exposing for sale under such 
 conditions held an offence under sec. 7 of 1 Edw. VII., ch. 27, 
 irrespective of whether the possessor knew of the fraudulent pack- 
 ing or was negligently ignorant of it. R. v. James, 6 C. C. C. 
 159, 4 0. L. R. 537. 
 
 If a man knowingly does acts which are unlawful, the presump- 
 tion of law is that the mens rea exists; ignorance of law will not 
 excuse him. R. v. Mailloux, 3 Pug. N". B. R. 493. 
 
 The word "knowingly," in sec. 179 (now 207) of the Code, 
 makes it incumbent on the prosecution to give some evidence of 
 knowledge of the contents of the obscene matter as being possessed 
 by the defendant. R. v. Beaver, (1905) 9 C. C. C. 415, 9 0. L. R. 
 '418. 
 
 C.C.P. 4
 
 50 INTENT AND MENS REA. 
 
 It is not necessary to prove knowledge by the liquor dealer of 
 the identity of the person supplied with the liquor in order to sus- 
 tain a conviction, under the Liquor License Act of New Brunswick, 
 for the sale of liquor to an interdict. E. v. Dias, 1 C. C. C. 534. 
 
 As to descriptions of offences in examples shewn in the Code 
 forms, and their scope, see R. v. Skelton, (1898) 4 C. C. C. 467. 
 
 Where it is a simple omission to perform a statutory duty, a 
 mens rea, in the ordinary sense of that term, or the absence of 
 good faith, is not necessary to justify a verdict of guilty. An in- 
 tentional omission to do what the statute requires to be done is 
 sufficient. R. v. Lewis, 7 C. C. C. 261, 6 0. L. E. 132. 
 
 See the following cases as to proof of intent in the crimes men- 
 tioned : 
 
 Murder To get life insurance money. R. v. Hammond, 1 C. 
 C. C. 373. 
 
 Poisoning. R. v. Sternaman, 1 C. C. C. 1. 
 
 Undertaking to tell fortunes. R. v. Marcott, 4 C. C. C. 437. 
 
 Arson Motive. R. v. Barsalou, 4 C. C. C. 347. 
 
 Use of drugs for securing miscarriage. R. v. Karn, 5 C. C. C. 
 543. 
 
 Assault with intent to commit murder. Re Kelly, (1902) 5 
 C. C. C. 541. 
 
 Demand with menaces Intent to steal. R. v. Lyon, 2 C. C. C. 
 242. 
 
 Sending threatening letter Intent to extort. R. v. Dixon, 
 2 C. C. C. 589. 
 
 Entering dwelling in night time with intent to assault. R. v. 
 Higgins, 10 C. C. C. 456. 
 
 Wounding with intent Verdict of "guilty without malicious 
 intent." R. v. Slaughenwhite, 9 C. C. C. 53, 173, 35 S. C. K. 607. 
 
 Finding of watch, pawning Criminal intent. R. v. Slavin, 
 21 C. L. T. Occ. N. 54, 7 C. C. C. 175. 
 
 False pretences. R. v. Cadden, 4 Terr. L. E. 119, 5 C. C. C. 
 45. 
 
 On a charge of unlawfully and maliciously killing cattle 
 (under E. S. C. ch. 43), it appeared that the animal was killed by 
 the prisoners when it was in a helpless and dying condition, and 
 that the prisoners thought it was an act of mercy to kill it. Held,
 
 INTENT AND MENS REA. 51 
 
 that the killing was not malicious; that the implication of malice 
 was rebutted, and in fact had been rebutted, a mens rea on the 
 part of the prisoners being disproved. R. v. Mennel, 1 Terr. L. 
 E. 487. 
 
 Manslaughter Master and servant Negligence. R. v. Brown, 
 1 Terr. L. R. 475, and see R. v. CUsholm, 14 C. C. C. 15. 
 
 Mischief to mines. E. v. Watier, 17 C. C. C. 9. 
 
 Mischief by damaging property Color of right. R. v. John- 
 son, 8 C. C. C. 123. 
 
 Accused were charged with maiming four stallions. A mali- 
 cious intent must still be shewn in the minds of accused. Accused 
 claimed that what was done was done for the protection of their 
 mares. Held, that the Alberta Ordinance respecting stallions and 
 bulls gives ample protection, and points out the course to be 
 adopted by persons aggrieved. The accused were convicted. R. 
 v. Kroesing, 10 W. L. E. 649, 16 C. C. C. 312. 
 
 The " colour of right " on the part of the defendant, which, 
 under Code sec. 481 (2), removes the criminal character of an act 
 of damage to property and ousts the jurisdiction of the magistrate 
 to summarily try a charge under sec. 507, means an honest belief 
 in a state of facts which, if it actually existed, would constitute a 
 legal justification or excuse. R. v. Johnson, 8 C. C. C. 123. 
 
 Selling liquor to Indians. A knowledge that purchaser is an 
 Indian is not essential to the offence. R. v. Pickard, (1908) 14 C. 
 C. C. 33. 
 
 False bank return. Materiality of wilful intent or guilty 
 knowledge. R. v. Browne, (1909) 14 C. C. C. 247. 
 
 Selling liquor to railway employee on duty. Want of know- 
 ledge no defence. R. v. Treanor, (1908) 14 C. C. C. 443. 
 
 Liquor License Law Unlicensed premises and illegal sales. 
 Occupant "permitting" same. R. v. Irish, (1909) 14 C. C. C. 
 458. 
 
 Sales and prescriptions by druggists and physicians. R. v. 
 McAllister, 14 D. L. R. 430, 22 C. C. C. 166 ; R. v. Russell, 14 T). 
 L. R. 792, 22 C. C. C. 131. 
 
 Offence under Motor Vehicles Act. R. v. Loble, 17 C. C. C. 
 417. 
 
 Murder Negativing intent. R. v. Blythe, (1909) 15 C. C. C. 
 224.
 
 52 COMPULSION OF WIFE. 
 
 Abortion Operating with intent. R. v. Cook, (1909) 15 C. 
 C. C. 40. 
 
 Use of trade marks, Code sec. 490. R. v. Coulombe, 20 C. C. 
 C. 31. 
 
 COMPULSION OP WIFE. 
 
 21. No presumption shall be made that a married woman commit- 
 ting an offence does so under compulsion because she commits it in the 
 presence of her husband. 
 
 The following is a brief statement of the common law respect- 
 ing the presumption of coercion of the wife by the husband, which 
 is now abrogated by the above enactment, and is no longer law. 
 The same sound principle which excuses those who have no mental 
 will in the prepetration of an offence, protects from the punish- 
 ment of the law those who commit crimes in subjection to the 
 power oi; others, and not as a result of an uncontrolled free action 
 proceeding from themselves. 4 Bl. Com, 27, 1 Hale 43. 
 
 This protection also exists in the public and private relations of 
 society; public, as between subject and prince, obedience to exist- 
 ing laws being a sufficient extenuation of civil guilt before a muni- 
 cipal tribunal; and private, proceeding from the matrimonial sub- 
 jection of the wife to the husband, from which the law presumes 
 a coercion which in many cases excuses the wife from the conse- 
 quences of criminal misconduct. 1 Hale 44- 
 
 In general, if a crime be committed by a feme covert in the 
 presence of her husband, the law presumes that she acted under his 
 immediate coercion, and excuses her from punishment. 1 Hale 
 455-6. 
 
 These presumptions of the coercion of the wife by the husband 
 may be rebutted by evidence, and if it appear that the wife was 
 principally instrumental in the commission of the crime, acting 
 voluntarily and not by restraint of her husband, although he was 
 present and concurred, she will be guilty and liable to punishment. 
 1 Hale 516. R. v. Cohen, 11 Cox 99; R. v. Torpey, 12 Cox 45. 
 
 This protection was not allowed in crimes which are mala in se 
 and prohibited by the law of nature, nor in such as are heinous in 
 their character, or dangerous in their consequences, and therefore 
 if a married woman be guilty of treason, murder, or offences of the 
 like description, in company with and by coercion of her husband, 
 she is punishable equally as if she were sole. 1 Hale 45, 47, 48. R. 
 v. Manning, 2 C. & K. 887.
 
 IGNORANCE OF THE LAW BREACHES OF THE PEACE. 53 
 
 IGNORANCE OF THE LAW. 
 
 22. The fact that an offender is ignorant of the .law is not an excuse 
 for any offence committed by him. 
 
 Ignorance of the law will not excuse from the consequences of 
 guilt any person who has capacity to understand the law. 1 Hale, 
 
 42. 
 
 If the offence be committed in England, a foreigner cannot be 
 excused because he does not know the law. R. v. Esop, 7 C. & P. 
 456. 
 
 And the same if it be committed in an English ship on the 
 high seas, which is in law part of the territory of England. R. v. 
 Lopez, R. v. Battler, Dears & B 525. 
 
 Ignorance or mistake of the fact may, in some cases, be allowed 
 as an excuse for the inadvertent commission of a crime ; as, for in- 
 stance, if a man, intending to kill a thief in his own house, kills 
 one of his own family, he will be guilty of no offence. 1 Hale J+2, 
 43. R. v. Levitt, Cro. Car. 538. 
 
 But this rule proceeds upon a supposition that the original 
 intention was lawful ; for, if an unforeseen consequence ensue from 
 an act which was in itself unlawful, and its original nature wrong 
 and mischievous, the actor is criminally responsible for whatever 
 consequences may ensue. 4 Bl. Com. 27. 
 
 Ignorance of the law is an excuse where anyone acts under a 
 warrant or process which is bad in law on account of some defect 
 in substance, or in form apparent on the face of it, if he in good 
 faith and without culpable ignorance and negligence believes that 
 the warrant or process is good in law. See sec 29 of the Code. 
 See also R. v. Maodie, 20 U. C. R. 399 ; R. v. Nailloux, 3 Pugsley 
 (KB.) 493; R. v. Madden, 10 L. C. Jurist 344. 
 
 BREACHES OF THE PEACE. 
 
 46. Every one who witnesses a breach of the peace is justified in 
 interfering to prevent its continuance or renewal and may detain any 
 person committing or about to join in or renew such breach of the peace, 
 in order to give him into the custody of a peace officer, if the person 
 interfering uses no more force than is reasonably necessary for preventing 
 the continuance or renewal of such breach of the peace, or than is 
 reasonably proportioned to the danger to be apprehended from the con- 
 tinuance or renewal of such breach of the peace. 
 
 47. Every peace officer who witnesses a breach of the peace, and 
 every person lawfully assisting him, ig justified in arresting any one 
 whom he finds committing such breach of the peace, or whom he, on
 
 54 BREACHES OF THE PEACE. 
 
 reasonable and probable grounds, believes to be about to join in or renew 
 such breach of the peace. 
 
 2. Every peace officer is justified in receiving into custody any 
 person given into his charge as having been a party to a breach of the 
 peace by one who has, or whom such peace officer, upon reasonable and 
 probable grounds, believes to have, witnessed such breach of the peace. 
 
 An affray (from affraier, to terrify) is the fighting of two or 
 more persons in some public place to the terror of His Majesty's 
 subjects ; for, if the fighting be in private, it is no affray, but an 
 assault. Affrays may be suppressed by any private person pre- 
 sent, who is justifiable in endeavouring to part the combatants, 
 whatever consequences may ensue. But more especially the con- 
 stable, or other similar officer however denominated, is bound to 
 keep the peace, and to that purpose may break doors to suppress an 
 affray, or apprehend the affrayers, and may either carry them 
 before a justice or imprison them by his own authority for a con- 
 venient space till the heat is over, and may then perhaps also make 
 them find sureties for the peace. 1 Hawk. P. G. 137. 
 
 The common law right, and duty of conservators of the peace 
 and of all persons (according to their power), to keep the peace 
 and to disperse, and, if necessary, to arrest those who break it, is 
 obvious and well settled. 1 Hawk. P. C. 63, sec. 13. Grant v. 
 Moser, X M. & G. 123. 
 
 SUPPRESSION OF RIOT BY MAGISTRATE, &c. 
 
 48. Every sheriff, deputy sheriff, mayor or other head officer or acting 
 head officer of any county, city, town or district, and every magistrate 
 and justice of the peace, is justified in using, and ordering to be used, 
 and every peace officer is justified in using, such force as he. in good 
 faith, and on reasonable and probable grounds, believes to be necessary 
 to suppress a riot, and as is not disproportioned to the danger which he. 
 on reasonable and probable grounds, believes to be apprehended from the 
 continuance of the riot. 
 
 See sec. 94 for punishment of neglect to suppress riot. 
 Riots, and unlawful assemblies must have three persons at 
 least to constitute them. Sec. 87. 
 
 SUPPRESSION OF RIOT BY MILITARY. 
 
 49. Every one. whether subject to military law or not. acting in good 
 faith in obedience to orders given bv any sheriff, deputy sheriff, mayor or 
 other head officer or acting head officer of any county, city, town or dis- 
 trict, or by any magistrate or justice, for the suppression of a riot, is 
 justified in obeying the orders so given unless such orders are manifestly 
 unlawful, and is protected from criminal responsibility in using such force 
 as he. on reasonable and probable grounds, believes to be necossary for 
 carrying into effect such orders. 
 
 2. It shall be a question of law whether any particular order is 
 manifestlv unlawful or not.
 
 SUPPRESSION OF RIOTS. 55 
 
 50. Every one, whether subject to military law or not, who in good 
 faith and on reasonable and probable grounds believes that serious mis- 
 chief will arise from a riot before there is time to procure the intervention 
 of any of the authorities aforesaid, is justified in using such force as he, 
 in good faith and on reasonable and probable grounds, believes to be 
 necessary for the suppression of such riot, and as is not disproportioned 
 to the danger which he, on reasonable grounds, believes to be apprehended 
 from the continuance of the riot. 
 
 51. Every one who is bound by military law to obey the lawful 
 command of his superior officer is justified in obeying any command given 
 him by his superior officer for the suppression of a riot, unless such 
 order is manifestly unlawful. 
 
 2. It shall be a question of law whether any particular order is 
 manifestly unlawful or not. v 
 
 52. Every one is justified in using such force as may be reasonably 
 necessary in order, 
 
 (a) to prevent the commission of any offence for which, if com- 
 mitted, the offender might be arrested without warrant, and the 
 commission of which would be likely to cause immediate and 
 serious injury to the person or property of any one ; or, 
 
 (6) to prevent any act being done which he, on reasonable grounds, 
 believes would, if committed, amount to any such offence. 
 
 By the common law every private individual may lawfully 
 endeavour, of his own authority and without any warrant or sanc- 
 tion from a magistrate, to suppress a riot, by every means in his 
 power. 
 
 He may disperse, or assist in dispersing, those assembled, and 
 stay those engaged in it from executing their purpose, as well as 
 stop and prevent others whom he may see coming up from joining 
 the rest. If the occasion demands immediate action, and no oppor- 
 tunity is given for procuring the advice or sanction of a magis- 
 trate, it is the duty of every subject to act for himself, and upon 
 his own responsibility, in suppressing a riotous and tumultuous 
 assembly, and the law will protect him in all that he honestly does 
 in prosecution of this purpose. Phillips v. Eyre, L. E. 6 Q. B. 15, 
 per WILLES, J. 
 
 UNLAWFUL ASSEMBLIES AND RIOTS. 
 
 87. An unlawful assembly is an assembly of three or more persons 
 who, with intent to carry out any common purpose, assemble in such a 
 manner or so conduct themselves when assembled as to cause persons in 
 the neighbourhood of such assembly to fear, on reasonable grounds, that 
 the persons so assembled will disturb the peace tumultuously, or will by 
 such assembly needlessly and without any reasonable occasion provoke 
 other persons to disturb the peace tumultuously. 
 
 2. Persons lawfully assembled may become an unlawful assembly if 
 they conduct themselves with a common purpose in such a manner as 
 would have made their assembling unlawful if they had assembled in that 
 manner for that purpose. 
 
 3. An assembly of three or more persons for the purpose of pro- 
 tecting the house of any one of their number against persons threatening 
 to break and enter such house in order to commit any indictable offence 
 therein is not unlawful.
 
 56 RIOTS AND UNLAWFUL ASSEMBLIES. 
 
 The march of a Salvation Army band through the streets of a 
 town in which street music was prohibited, and which resulted in a 
 breach of the peace, was held not to be an unlawful assembly when 
 the bandsmen hadn't any reason to believe that their acts would 
 cause a breach of the peace. R. v. Clarkson, 17 Cox 483. 
 
 A procession of the Salvation Army was forcibly opposed by a 
 number of persons, but no violence was used by the Salvation Army 
 members. Held, that the assembly of the latter was not unlawful, 
 and that a man is not to be convicted for doing a lawful act, 
 although he knows that his doing it may cause another to do an 
 unlawful act. Beatty v. Gillbanks, (1882) 9 Q. B. D. 308, 15 Cox 
 138. 
 
 It is not necessary to first read the Eiot Act or to proclaim the 
 meeting unlawful before using force to disperse it. The magis- 
 trates and police are justified in dispersing an assembly which is 
 unlawful. R. v. Kennett, 5 C. & P. 282. 
 
 After a refusal to disperse, force may be used to compel them 
 to do so, and the persons resisting may be punished as rioters. 
 See O'Kelly v. Harvey, 15 Cox. 435 ; Redford v. Birley, 1 St. Tr. 
 (N.S.) 1071-1239; R. v. Mole, 3 St. Tr. (N.S.) 1312; R. v. 
 Jones, 6 St. Tr. (N.S.) 811; R. v. Fursey, (1833) St. Tr. (N.S.) 
 543, 6 C. & P. 81 ; R. v. Vincent, 9 C. & P. 91 ; Back v. Holmes, 16 
 Cox 263; R. v. Clarkson, 17 Cox 483; R. v. Orion, 14 Cox 226; 
 R. v. Mailloux, 3 Pugsley, N. B. 493. 
 
 A meeting lawfully convened may become unlawful if sedi- 
 tious words are spoken of such a nature as to be likely to produce 
 a breach of the peace. R. v. Burns, (1886) 16 Cox 355. 
 
 The mere fact of holding a meeting in a street does not neces- 
 sarily imply the impeding or incommoding of peaceable passengers, 
 and proof of actual impeding or incommoding is essential to justify 
 a conviction. R. v. Kneeland, Q. E. 11 K. B. 85; 6 C. C. C. 81. 
 
 EIOT. 
 
 88. A riot is an unlawful assembly which has begun to disturb the 
 peace tumultuously. 
 
 89. Every member of an unlawful assembly Is guilty of an indictable 
 offence and liable to one year's imprisonment. 
 
 90. Every rioter is guilty of an indictable offence and liable to two 
 years' imprisonment with hard labour. 
 
 The accused was indicted for a riot and assault, and the jury 
 found him guilty of a riot, but not of assault. Held, that a con- 
 viction for riot could not be sustained, the assault, the object of
 
 HEADING THE RIOT ACT. 57 
 
 the riotous assembly, not having been executed; although the de- 
 fendant might have been guilty of riot, or joining in an unlawful 
 assembly. R. v. Kelly, 6 C. P. 372. 
 
 This case was decided in 1857 under the Common Law defini- 
 tion of what was then a riot which included the actual execution of 
 the purpose intended (Hawkins, P. C. ch. 28, p. 513), and would 
 not now be good law under the above definition of a riot. 
 
 A procession having been attacked by rioters, the prisoner one 
 of the processionists, and in no way connected with the rioters, was 
 proved to have fired off a pistol on two occasions first in the air, 
 and then at the rioters. So far as appears from the evidence, the 
 prisoner acted alone and not in connection with anyone else. Held, 
 that a conviction for riot could not be sustained. The prisoner 
 having been indicted jointly with a number of the rioters on a 
 charge of riot and convicted, upon a case reserved after the verdict, 
 the conviction was quashed. R. v. Corcoran, 26 C. P. 134. 
 
 BEADING THE RIOT ACT. 
 
 91. It is the duty of every sheriff, deputy sheriff, mayor or other 
 head officer, and justice, of any county, city or town, who has notice that 
 there are within his jurisdiction persons to the number of twelve or more 
 unlawfully riotously and tumultuously assembled together to the dis- 
 turbance of the public peace, to resort to the place where such unlawful, 
 riotous and tumultuous assembly is. and among the rioters, or as near 
 to them as he can safely come, with a loud voice to command or cause 
 to be commanded silence, and after that openly and with loud voice to 
 make or cause to be made a proclamation in these words or to the like 
 effect. 
 
 " Our Sovereign Lord the King charges and commands all persons 
 being assembled immediately to disperse and peaceably to depart to their 
 habitations or to their lawful business, upon the pain of being guilty of 
 an offence on conviction of which they may be sentenced to imprisonment 
 for life. 
 
 " GOD SAVE THE KING." 
 
 The proclamation must be read correctly. Where the magis- 
 trate, in reading the proclamation, omitted the words " God save 
 the King," it was held that persons remaining could not be 
 capitally convicted. R. v. Child, 4 C. & P. 442. 
 
 Before the proclamation can be read, a riot must exist, and the 
 effect of the proclamation will not change the character of the 
 meeting, but will make those guilty of felony who do not disperse 
 within an hour after the proclamation is read. R, v. Fursey, 6 C. 
 & P. 81. 
 
 By sec. 93 of the Code, the time for dispersion after the pro- 
 clamation is made is fixed at " thirty minutes."
 
 58 DUTIES OF OFFICIALS AS TO EIOTS. 
 
 In reference to the duties of a magistrate in repelling a riot, see 
 Mr. Justice Littledale's address to the jury in R. v. Pinney, 5 C. 
 & P. 254-261. 
 
 There may be a riot, though no more than three persons con- 
 stitute the unlawful assembly, but the Riot Act should not be read 
 unless there are at least twelve such persons. 
 
 92. All persons are guilty of an indictable offence and liable to im- 
 prisonment for life who, 
 
 (a) with force and arms wilfully oppose, hinder or hurt any person 
 who begins or is about to make the said proclamation, whereby such 
 proclamation is not made ; or, 
 
 (6) continue together to the number of twelve for thirty minutes 
 after such proclamation has been made, or if they know that its 
 making was hindered as aforesaid, within thirty minutes after such 
 hindrance. 
 
 93. If the persons so unlawfully, riotously and tumultuously assembled 
 together, or twelve or more of them, continue together, and do not dis- 
 perse themselves, for the space of thirty minutes after the proclamation 
 is made or after such hindrance as aforesaid it is the duty of every such 
 sheriff, justice and other officer, and of all persons required by them to 
 assist, to cause such persons to be apprehended and carried before a 
 justice. 
 
 2. If any of the persons so assembled are killed or hurt in the ap- 
 prehension of such persons or in the endeavour to apprehend or disperse 
 them, by reason of their resistance, every person ordering them to be 
 apprehended or dispersed, and every person executing such orders, are 
 indemnified against all proceedings of every kind in respect thereof. 
 
 3. Nothing in this section contained shall, in any way, limit or affect 
 any duties or powers imposed or given by this Act as to the suppression 
 of riots before or after the making of the said proclamation. 
 
 By sec. 1140 of the Code, no prosecution for any offence against 
 see. 92 shall be commenced after the expiration of one year from its 
 commission. 
 
 94. Every sheriff, deputy sheriff, mayor or other head officer, justice, 
 or other magistrate, or other peace officer, of any county, city, town, or 
 district, who has notice that there is a riot within his jurisdiction, who, 
 without reasonable excuse, omits to do his duty in suppressing such riot, 
 is guilty of an indictable offence and liable to two years' imprisonment. 
 
 See B. v. Kennett, 5 C. & P. 282. 
 
 95. Every one is guilty of an indictable offence and liable _to one year's 
 imprisonment who, having reasonable notice that he is required to assist 
 any sheriff, deputy sheriff, mayor, or other head officer, justice, magistrate, 
 or peace officer in suppressing any riot, without reasonable excuse omits to 
 do so. 
 
 PARTIES TO OFFENCES. 
 
 69. Every one is a party to and guilty of an offence who, 
 (a) actually commits it; or, 
 
 (6) does or omits an act for the purpose of aiding any person to 
 commit the offence ; or,
 
 PRINCIPALS AND ACCESSORIES. 59 
 
 (c) abets any person in commission of the offence ; or, 
 
 (d) counsels or procures any person to commit the offence. 
 
 2. If several persons form a common intention to prosecute any un- 
 lawful purpose, and to assist each other therein, each of them is a party 
 to every offence committed by any one of them in the prosecution of such 
 common purpose, the commission of which offence was, or ought to have 
 been known to be a probable consequence of the prosecution of such 
 common purpose. 
 
 7O. Every one who counsels or procures another person to be a party 
 to an offence of which that person is afterwards guilty, is a party to that 
 offence, although it may be committed in a way different from that which 
 was counselled or suggested. 
 
 2. Every one who counsels or procures another to be a party to an 
 offence is a party to every offence which that other commits in consequence 
 of such counselling or procuring, and which the person counselling or pro- 
 curing knew, or ought to have known, to be likely to be committed in con- 
 sequence of such counselling or procuring. 55-56 V., c. 29, s. 62. 
 
 ACCESSORIES. 
 
 By the provisions of these sections the common law distinction 
 between principals and accessories before the fact is abolished. All 
 are now principals, whether or not they are actual perpetrators of 
 the crime. The old rule defined parties to offences as follows: 
 The general definition of a principal in the first degree is one who 
 is the actor or actual perpetrator of the act: 1 Hale, 283, 615. 
 But it is not necessary that he should be actually present when the 
 offence is consummated, for if one lay poison purposely for another 
 who takes it and is killed, he who laid the poison, though absent 
 when it was taken, is a principal in the first degree. Vaux's Case, 
 4 Eep. 44; R. v. Barley, 4 C. & P. 369. 
 
 Principals in the second degree were those who were present 
 aiding and abetting at the commission of the act. Presence in this 
 sense is either actual or constructive. It is not necessary that the 
 party should be actually present, an ear or eye witness of the trans- 
 action; he is in construction of law present aiding and abetting 
 if, with the intention of giving assistance, he be near enough to 
 afford it should the occasion arise. Thus if he be outside the house 
 watching to prevent surprise, or the like, whilst his companions are 
 in the house committing a felony, such constructive presence was 
 sufficient to make him a principal in .the second degree. Foster 
 347, 3.50 ; 1 Hale, 555. R. v. Owen, 1 Moody C. C. 96. But now 
 the law makes no such distinction. But he must be sufficiently 
 near to give assistance. R. v. Stewart, R. & R. 363 ; R. v. Lloyd, 
 19 0. R. 352. 
 
 There must be a participation in the act; for, although a man 
 be present whilst a felony is committed, if he take no part in it
 
 60 ACCESSORIES TO CRIME. 
 
 and do not act in concert with those who commit it, he will not be 
 a principal in the second degree, merely because he did not endea- 
 vour to prevent the felony, or apprehend the felon. 1 Hale, 439. 
 
 An accessory before the fact is he who, being absent at the time 
 of the felony committed, doth yet procure, counsel, command or 
 abet another to commit a felony. 1 Hale, 615. 
 
 If the party be actually or constructively present when the 
 felony is committed, he is, as we have seen, an aider and abettor, 
 and not an accessory before the fact, for it is essential to constitute 
 the offence of accessory that the party should be absent at the time 
 of the offence. 1 Hale, 615. 
 
 Now, by the provisions of sees. 69 and 70 all these distinctions 
 between principals of the first and second degree, and between prin- 
 cipals and accessories before the fact, are done away with. They 
 are all now parties of equal degree and guilty of an offence who 
 (1) actually commit it; (2) who do, or omit to do, an act for the 
 purpose of aiding the commission of it; (3) who abet or aid in 
 the commission of it, or, (4) who counsel or procure any person to 
 commit it. 
 
 " The effect of this enactment (sec. 69), is that persons who do 
 anything for the purpose of aiding another person to commit an 
 offence, or who abet^ another person in commission of an offence, are 
 themselves considered guilty of the offence and become liable to DC 
 prosecuted, tried, convicted and punished as if they had jhemselves 
 committed jt." AVUBTELE, J., at p. 474, in E. v. Roy, (1900) 3 C. 
 
 The rule of law now is that any person who, before the commis- 
 sion of an offence, does something to aid in its being committed, or 
 to help, or to facilitate its commission, or to furnish the means to 
 accomplish its commission, although he may not be present when 
 the offence is actually perpetrated, may be treated and dealt with as 
 a principal, and such person falls directly under paragraph (b) of 
 section 61 (now sec. 69) of the Criminal Code, as having done an 
 act for the purpose of aiding any person to commit an offence ; then 
 the person who, under the old rule of law, would have been princi- 
 pal in the second degree by abetting the perpetrator in the commis- 
 sion of an offence, falls under paragraph (c), and may likewise be 
 dealt with as a principal. Ibid. p. 476. See E. v. Smith, (1876) 
 38 U. C. R. 218, 227. 
 
 As to counselling murder, see sec. 266 of the Code.
 
 ACCESSORIES TO CRIME. 61 
 
 If a person sees that a crime is about to be committed in his 
 presence and does not interfere to prevent it, that is not a partici- 
 pation rendering him liable, without evidence that he was there Tn 
 pursuance of a" 'common unlawful purpose with the principal 
 offender^ It. v. Curiley, 27 IT. C. E. 613. 
 
 In order to be an aider and abettor, it is not necessary that the 
 person who thus participates in an offence should be present during 
 the commission of some incident constituting the offence; it is 
 sufficient that he aids and abets while a part of the criminal trans- 
 action is taking place, either at its commencement, or during its 
 progression, or later, but proximately at its consummation, or in- 
 deed while some act is being done which they may enter into the 
 offence though it might be consummated without it. 
 
 In the case of theft, the crime is generally complete when the 
 thief takes and carries away the object which he had formed the 
 design to steal. And any one who knowingly assists a thief to 
 conceal stolen property, which he is in the actual _and proximate act 
 oj carrying away, renders aid to the actual perpetrator and princi- 
 pal and becomes an accessory to the crime, and under the provisions 
 of the Criminal Code can be dealt with like a principal. WURTELE, 
 J., at pp. atiO-61; in R. v. Campbell, (1899) 2 C. (I C. 357. 
 
 Aid rendered to the principal offenders after the commission 
 of the crime is alone insufficient to justify the conviction of the per- 
 son so aiding as a principal under sec. 61 (now 69). R. v. Graham, 
 (1898). 2 C. C. C. 388. See R. v. Hodge, (1898) 2 C. C. C. 350. 
 
 Theft by the fraudulent appropriation by the principal and a 
 fraudulent receiving by an accessory before the fact of the property 
 so appropriated may take place at the same time and by the same 
 act. R. v. Mclntosh, (1894) 5 0. C. C. 254, 23 S. C. E. 180. 
 
 A broker who merely acts as such for two parties, one a buyer 
 and the other a seller, without having any pecuniary interest in 
 the transaction beyond his fixed commission, and without any 
 guilty knowledge on his part of the intention of the contracting 
 parties to gamble in stocks or merchandise, is not liable to prosecu- 
 tion under sec. 201, pp. (a) and (b) (now sees. 231, 232) of the 
 Code, nor as an accessory under sec. 61. (now 69). R. v. Dowd, 
 (1899) 4 C. C. C. 170; and see R. v. Harkness (No. 1), (1904) 
 10 C. C. C. 193; R. v. Hendrie, (1905) 10 C. C. C. 298. 
 
 Wfrpj-P _t.wQ prisoners .. ( abettor and principal^ are jointly in- 
 dicted, but an order is made for their separate trial, the one is jin 
 admissible witness for the other, and is bound to testify, although
 
 62 ACCESSORIES TO CRIME. 
 
 he may prevent his evidence being used against himself at a sub- 
 sequent trial R. v. ffiats, (1905) 10 C. C. C. 354. ~ 
 
 The accused was the owner of a motor car, and was sitting in 
 the front seat with a lady who was driving the car, and it was 
 going at the rate of fifty miles an hour, which was dangerous to 
 the public. On appeal from a conviction it was held that the con- 
 viction T?as right, and that the appellant was aiding and abetting 
 the offence, and as such might properly be convicted himself as 
 having done the unlawful act complained of, and that it was not 
 necessary to charge him with aiding and abetting. DuCros v. 
 Lambourne, [1907] 1 K. B. 40, 21 Cox, 311. 
 
 Counselling a woman in Canada to submit in a foreign country 
 to an abortion, which in Canada would be an indictable offence, is 
 not in itself indictable in Canada if the operation is performed in 
 a foreign country. R. v. WalTcem, (1908)' 14 C. C/C. 122, and see 
 R. v. McCready, (1909) 14 C. C. C. 482. 
 
 Under sec. 428 of the Code, in offences against sees. 425, 426 
 and 427, " the person by whom such thing is actually done, or who 
 connives at the doing thereof, is alone guilty of the offence." 
 
 This provision safeguards innocent partners where an offence 
 mentioned in the three sections above named is committed, " by the 
 doing of anything in the name of any firm, company or co-partner- 
 ship of persons." 
 
 ACCESSORIES AFTER THE FACT. 
 
 71. An accessory after the fact to an offence is one who receives, 
 comforts or assists any one who has been a party to such offence in order 
 to enable him to escape, knowing him to have been a party thereto. 
 
 2. No married person whose husband or wife has been a party to an 
 offence shall become an accessory after the fact thereto by receiving, com- 
 forting or assisting the other of them, and no married woman whose hus- 
 band has been a party to an offence shall became an accessory after the 
 fact thereto, by receiving, comforting or assisting in his presence and by 
 his authority any other person who has been a party to such offence in 
 order to enable her husband or such other person to escape. 
 
 574. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who, in any case where no express provision is made 
 by this Act for the punishment of an accessory, is accessory after the fact 
 to any indictable offence, for which the punishment is. on a first convic- 
 tion, imprisonment for life, or for fourteen years, or for any term longer 
 than fourteen years. 
 
 575. Every one who is accessory after the fact to any indictable of- 
 fence for committing which the longest term to which the offender can be 
 sentenced is less than fourteen years, if no express provision is made for 
 the punishment of such accessory, is guilty of an indictable offence and 
 liable to imprisonment for a term equal to one-half of the longest term 
 to which a person committing the indictable offence to which he is ac- 
 cessory may be Sentenced.
 
 ACCESSORIES AFTER THE PACT. 63 
 
 The common law definition of an accessory after the fact is one 
 who, knowing a felony to have been committed by another, receives 
 relieves, comforts or assists the felon. 1 Hale 618; 4 B. Com. 37. 
 
 Any assistance given to one known to be a felon in order 10 
 hinder his apprehension, trial or punishment, is sufficient to make 
 a man an accessory after the fact, as for instance, that he concealed 
 him in the house: Dalton, 530-1; or shut the door against his 
 pursuers until he should have an opportunity of escaping : 1 Hale, 
 619; or took money from him to allow him to escape, or supplied 
 him with money, a horse or other necessaries in order to enable 
 him to escape : 2 Hawk. c. 29, s. 26; or that he was in prison and 
 J. W. bribed the gaoler to let him escape ; or conveyed instruments 
 to him to enable him to break prison and escape: 1 Hale, 621. But 
 merely suffering the principal to escape will not make the party an 
 accessory after the fact, for it amounts at most to a mere omission. 
 1 Hale, 619. 
 
 He must be proved to have done some act to assist the felon 
 personally. R. v. Chappie, 9 0. & P. 353. But, if he employ an- 
 other person to do so, he will be equally guilty as if he harboured 
 or relieved him himself. R. v. Jarvis, 2 M. & Eob. 40. 
 
 A wife is not punishable as accessory for receiving, &c., her 
 husband, although she knew him to have committed felony. 1 
 Hale, 48, 621; R. v. Manning, 2 C. & K. 887, for she is presumed 
 to act under his coercion. 
 
 But no other relation of persons can excuse the wilful receipt 
 or assistance of felons; a father cannot assist his child, a child his 
 parent, a brother hisJbrother. a master his servant, or a servant 
 his masjer. Ibid. 
 
 If the wife alone, the husband being ignorant of it, receive any 
 other person being a felon, the wife is accessory and not the hus- 
 band. 1 Hale, 621. 
 
 And if the husband and wife both receive a felon knowingly, it 
 shall be adjudged only the act of the husband, and the wife shall 
 be acquitted. Ibid. 
 
 To constitute this offence it is necessary that the accessory have 
 notice, direct or implied, at the time he assists or comforts the 
 felon, that he had committed a felony. 2 Hawk. ch. 29, sec. 32. 
 
 On an indictment charging a man as a principal felon only, he 
 cannot be convicted of the offence of being an accessory after the 
 fact. R. v. Fallon. 33 L. J. M. C. 66.
 
 64 ATTEMPTS TO COMMIT OFFENCES. 
 
 By sec. 849 of the 'Code, an accessory after the fact to any 
 offence may be indicted without the principal offender being in- 
 dicted or convicted. He may either be indicted alone or jointly 
 with the principal offender. 
 
 ATTEMPTS TO COMMIT OFFENCES. 
 
 72. Every one who, having an intent to commit an offence, does or 
 omits an act for the purpose of accomplishing his object, is guilty of an 
 attempt to commit the offence intended whether under the circumstances 
 it was possible to commit such offence or not. 
 
 2. The question whether an act done or omitted with intent to com- 
 mit an offence is or is not only preparation for the commission of that 
 offence, and too remote to constitute an attempt to commit it, is a ques- 
 tion of law. 
 
 The general rale was that an attempt to commit a misdemea- 
 nour is a misdemeanour, whether the offence is created by Statute, 
 or was an offence at common law. R. v. Roderick, 7 C. & P. 795, 
 per PAKKER, B. 
 
 It was formerly held that an attempt to commit a crime can 
 only, in point of law, be made out where, if no interruption had 
 taken place the attempt could have been carried out successfully, 
 so as to constitute the offence which the accused is charged with 
 attempting to commit. R. v. Collins, L. & C. 471, 33 L. J. M. C. 
 1:77. But this case has been overruled. R. v. Brown, 24 Q. B. D. 
 377, and, under above section, there may be a conviction for (e.g.) 
 an attempt to pick a pocket, though there be nothing in the pocket 
 at the time. 
 
 When the complete commission of an offence charged is not 
 proved but the evidence establishes an attempt to commit the 
 offence, the accused may be convicted of such attempt and pun- 
 ished accordingly. Sec. 949 of the Code. 
 
 When an attempt to commit an offence is charged, but the 
 evidence establishes the commission of the full offence, the ac- 
 cused shall not be entitled to be acquitted, but the jury may con- 
 vict him of the attempt, unless the Court before which such_ trial is 
 had thinks fit, in_its discretion, to discharge the jury from giving 
 any verdict^ upon such trial, and to direct such person to bejindicted 
 for the complete offence. (2) After a conviction for such attempt 
 the accused shall not; be liable to be tried again for the offence 
 which he was charged with attempting to commit. Sec. 950 of the 
 Code, and R. v. Taylor, (1895) 5 C. C. C. 89. 
 
 An assault with intent to commit an offence is an attempt to 
 commit such offence, and on an indictment for rape a conviction
 
 ATTEMPTS TO COMMIT OFFENCES. 65 
 
 for an assault with intent to commit rape is valid. John v. The 
 Queen, 15 S. C. E. 385. 
 
 There cannot be a conviction for an attempt to commit an in- 
 decent assault, wnen tne jury fails to convict on a charge of inde- 
 cent assault. K. v. Menary, 18 C. C. C. 237. 
 
 Attempt to commit murder, E. v. Lapiere, (1897) 1 C. C. C. 
 413. Attempt to commit abortion, R. v. Hamilton, (1897) 4 C. 
 C. C. 251. Theft from the person, conviction of attempt, R. v. 
 Morgan (No. 2), (1901) 5 C. C. C. 272. Attempt to carnally know 
 girl under 14, R. v. DeWolfe, (1904) 9 C. C. C. 38. Attempt to 
 commit rape, assault with intend to commit rape, R. v. Preston, 
 (1905) 9 C. C. C. 201. Attempt to obtain money by false pre- 
 tences. R. v. Lyons (No. 1), 16 C. C. C. 152. 
 
 Attempt to steal. R. v. Montgomery, 19 C. C. C. 233. 
 
 Is an " assault with intent to commit rape " an attempt to 
 commit the felony charged within the meaning of section 183, 
 B. S. C. ch. 174 (now sec. 949 Criminal Code) ? " I am of the 
 opinion that, prima facie, unless there is some enactment shewing 
 a contrary intention and therefore calling for a narrower construc- 
 tion of section 183, that it clearly is so. This opinion is founded 
 on the consideration that an indictment for the common law mis- 
 demeanour of an attempt to commit a felony always alleged the 
 particular overt act of which the attempt consisted, and, further, 
 that, inasmuch as an attempt to commit a crime is, as Mr. Justice 
 Stephens defines it (Stephens' Digest Criminal Law, 4th ed., Art. 
 49), 'an act done with intent to commit that crime, and forming 
 part of a series of acts which would constitute the actual commis- 
 sion if it were not interrupted/ (a definition which has the support 
 of ample judicial authority as the learned author shews in the 
 illustrations appended to his text), so the converse holds good that 
 an assault with intent to commit rape is an attempt to commit that 
 offence. The only purpose and effect of section 38 (E. S. C. 1886, 
 ch. 162) (now sec. 300 of the Code), was, as it seems to me, to 
 affix a new and precise punishment to this particular species of the 
 misdemeanor of attempting to commit a felony. . . . The 
 whole subject of the section manifestly was to define the punish- 
 ment for an offence which always constituted a misdemeanour at 
 common law, and for which the 183rd section of the Procedure 
 Act, E. S. C. 174 (now sec. 949 of the Code), had provided there 
 might be a conviction on an indictment for the felony." STRONG,
 
 66 ATTEMPTS TO COMMIT OFFENCES. 
 
 J., in John v. The Queen, (1888) 15 S. C. B. 384. See section 949 
 of the Code, ante. 
 
 ATTEMPTS TO COMMIT CERTAIN SPECIFIED OFFENCES. 
 
 By the Code, attempts to commit the following crimes are ex- 
 pressly declared to be indictable offences : 
 
 Sec. 188. To break prison. 
 
 Sec. 203. To commit sodomy. 
 
 Sec. 216. To procure girl for defilement. 
 
 Sec. 216 (c). Procuring girl for prostitution. 
 
 Sec. 216 (d). To procure a girl to leave Canada to become an 
 inmate of a brothel elsewhere. 
 
 Sec. 216 (f) To procure girl to leave her abode to become an 
 inmate of a brothel in Canada. 
 
 Sec. 216 (g) To procure carnal connection by threats. 
 
 Sec. 264. Who, with intent to commit murder, attempts to 
 
 (a) administer poison, (c) to shoot at any person, (d) 
 to drown any person, or (h) by any other means 
 attempts to commit murder. 
 
 Sec. 2<70. Suicide. 
 
 Sec. 276. To choke any person or to administer a narcotic. 
 
 Sec. 280. Bodily injury by explosives. 
 
 Sec. 300. Attempts to commit rape. 
 
 Sec. 302. To defile children under 14. 
 
 Sec., 303. To procure abortion. 
 
 Sec. 304. Miscarriage. 
 
 Sec. 454. To compel execution, alteration or destruction of a 
 document. 
 
 Sec. 467. To use forged document. 
 
 Sec. 478 (b). To obtain anything by forged instrument or by 
 probate of forged will. 
 
 Sec. 512. To commit arson. 
 
 Sec. 514. To set fire to crops, or trees or timber. 
 
 Sec. 521. To damage telegraph, telephone or fire-alarm. 
 
 Sec. 523. To cast away or destroy any ship. 
 
 Sec. 536. To kill, maim, wound or poison cattle. 
 
 There are also other sections dealing expressly with attempts to 
 commit particular crimes.
 
 ATTEMPTS ^CONSPIRACIES. 67 
 
 ATTEMPTS TO COMMIT OFFENCES GENERALLY. 
 
 The following three sections provide for the punishment for 
 attempts to commit crimes generally. 
 
 570. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who attempts, in any case not hereinbefore pro- 
 vided for, to commit any indictable offence for which the punishment is 
 imprisonment for life, or for fourteen years, or for any term longer than 
 fourteen years. 
 
 571. Every one who attempts to commit any indictable offence for 
 committing which the longest term to which the offender can be sen- 
 tenced is less than fourteen years, and no express provision is made by 
 law 'for the punishment of sudh attempt, is guilty of an indictable offence 
 and liable to imprisonment for a term equal to one-half of longest term 
 to which a person committing the indictable offence attempted to be com- 
 mitted may be sentenced. 
 
 572. Every one is guilty of an indictable offence and liable to one 
 year's imprisonment who attempts to commit any offence under any 
 statute for the time being in force and not inconsistent with this Act, 
 or incites or attempts to incite any person to commit any such offence, 
 and for the punishment of which no express provision is made by such 
 statute. 
 
 CONSPIRACIES. 
 
 Sec. 573 of the Code provides for all cases of conspiracy not 
 thereinbefore provided for, as follows : 
 
 573. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who, in any case not hereinbefore provided for, con- 
 spires with any person to commit any indictable offence. 
 
 Other sections of the Code relating to conspiracy are as follows : 
 
 Sec. 75. Conspiracy to commit acts of treason. 
 
 Sec. 78. Conspiracy in relation to deposing His Majesty, 
 (b) to levy war, (c) to induce invasion. 
 
 Sec. 79. Conspiracy to intimidate a legislature. 
 
 Sec. 178. Conspiring to bring false accusation. 
 
 Sec. 218. Conspiracy to defile any woman. 
 
 Sec. 226. Conspiring to murder. 
 
 Sec. 444. Conspiring to defraud the public or any person 
 generally. 
 
 Sec. 496. Conspiracy in restraint of trade. 
 
 Sec. 863. Indictment relating to conspiracy by fraudulent 
 means. 
 
 A conspiracy is an agreement between two or more persons 
 
 1. Falsely to charge another with a crime punishable by law 
 either from a malicious, or vindictive motive, or feeling, toward 
 the party, or for the purpose of extorting money from him.
 
 68 CONSPIRACIES. 
 
 2. Wrongfully to injure, or prejudice, a third person, or any 
 body of men, in any other manner. 
 
 3. To commit any offence punishable by law. 
 
 4. To do any act with intent to pervert the course of justice. 
 
 5. To effect a legal purpose with a corrupt intent, or by im- 
 proper means. 
 
 6. To which may be added conspiracies or combinations by 
 employees or workmen in the course of trade disputes. Arch. PI. 
 & Ev., 24th ed., 1410, and see the cases there cited. 
 
 ^^ 
 
 The indictment in the first place must charge the conspiracy. 
 And in stating the object of the conspiracy the same certainty 
 is not required as in an indictment for the offence, etc., conspired 
 to be committed; as for instance an indictment for conspiring 
 to defraud a person of " divers goods " has been held sufficient. 
 R. v. Blake, 6 Q. B. 126, 13 L. J. M. C. 131 ; Sydsorff v. E., 11 
 Q..B. 245. 
 
 So an indictment charging a conspiracy " by divers false pre- 
 tences and indirect means to cheat and defraud of his monies " 
 was held good. R. v. Gompertz, 9 Q. B. 824; R. v. Gill, 2 B. & 
 Aid. 204; R. v. Aspinall, 2 Q. B. D. 60; and it is not necessary in 
 order to maintain such an indictment to prove such a false pre- 
 tence as would, if money had been obtained on it by one person 
 alone, have been sufficient to sustain an indictment against him 
 for obtaining money by false pretences. R. v. Hudson, Bell, 263, 
 29 L. J. M. C. 145. 
 
 But an indictment charging a conspiracy to defraud the credi- 
 tors of W. E. (without any further statement of the conspiracy or 
 of any overt act) is bad as being too general. R. v. Fowle, 4 C. 
 & P. 592. 
 
 It is usual to set out the overt acts, that is to say, those acts 
 which may have been done by any one or more of the conspirators 
 in order to effect the common purpose of the conspiracy. But 
 this is not essentially necessary : the conspiracy itself is the offence, 
 and whether anything has been done in pursuance of it or not is 
 immaterial. R. v. Gill, 2 B. & Aid. 205 ; R. v. Seward, I A. & E. 
 706; R. v. KenricJc, 5 Q. B. 49, 12 L. J. M. C. 135; and see 
 sec. 863 of the Code. 
 
 A conspiracy consists not merely in the intention of two of 
 more, but in the agreement of two or more, to do an unlawful act, 
 or to do a lawful act by unlawful means.' So long as such a de- 
 sign rests in intention only it is not indictable. But where two
 
 CONSPIRACIES. 69 
 
 agree to carry it into effect the very plot is an act in itself, and 
 the act of each of the parties, promise against promise, actus 
 contra acium, capable of being enforced, if lawful, is punishable if 
 for a criminal object, or for the use of criminal means. Mulcahy 
 v. The Queen, L. E. 3 H. L. at p. 317. 
 
 Overt acts which are laid and proved against some of the de- 
 fendants may be looked at as againt all of them to shew the 
 nature and objects of the conspiracy. R. v. Esdaile, 1 F. & F. 213. 
 
 An indictment for conspiracy to defraud is good without set- 
 ting out any overt act, and the name of the person injured or 
 intended to be injured need not be stated therein. E. v. Hutchin- 
 son, (1904) 8 C. C. C. 486; and see R. v. Patterson, (1895) 2 C. 
 C. C. 339. 
 
 It is not necessary to prove that the defendants actually met 
 together and concerted the proceeding; it is sufficient if the jury 
 are satisfied from the conduct of the accused, either together or 
 severally, that they were acting in concert. R. v. Fellowes, (1859) 
 19 U. C. E. 48, 58; Farquar v. Robertson, 13 P. E. 156. 
 
 There is no unvarying rule that the agreement to conspire 
 must first be established before the particular acts of the indi- 
 viduals implicated are admissible. BOYD, C., at p. 480, in R. v. 
 Connelly, (1894) 1 C. C. C. 468; 25 0. E. 151. 
 
 An indictment for a conspiracy may be tried in any county 
 in which an overt act has been committed in pursuance of the 
 original illegal combination and desjgn. Ibid. It was competent 
 for the jury to group the detached facts and view them as indicat- 
 ing a well understood or concerted purpose on the part of all the 
 actors and privies. Ibid. 
 
 It is now, as I think, entirely beyond question that a conspir- 
 acy can be established without any proof of the agreement in fact 
 between or amongst the alleged conspirators. FERGUSON, J., at p. 
 490, ibid., citing R. v. Fellowes, 19 IT. C. E. 48, at pp. 57-58, and 
 see R. v. Connelly, supra. 
 
 A conspiracy to defraud is indictable although the object was 
 to commit a civil wrong, and although if carried out the act agreed 
 upon would not constitute a crime. MACMAHON, J., in R. v. De- 
 fries, (1894) 1 C. C. C. 207, at pp. 212, 213, citing R. v. War- 
 burton, L. E. 1 C. C. E. 274; R. v. Tamblyn, 25 0. E. 645. 
 
 One conspirator may be indicted and convicted without joining 
 the others although they are living and within the jurisdiction.
 
 70 CONSPIRACIES. 
 
 Ano^a conspiracy to defraud is indictable although the conspira- 
 tors were unsuccessful in carrying out the fraud. R. v. Frawley, 
 (1894) 1 C. C. C. 253, 25 O. K. 431. See -R. v. Carlin (No. 2), 
 (1903) 6 C. C. C. 507; Q. B. 12 K. B. 483. 
 
 An indictment for conspiracy to defraud may properly charge 
 that the conspiracy was with persons unknown, if neither the 
 Crown nor the private prosecutor had definite information of the 
 identity of the alleged co-conspirators. R. v. Johnston, (1902) 6 
 C. C. C. 232. 
 
 The objection that the indictment is bad because it unneces- 
 sarily condescends to state the details of the proposed fraud is 
 clearly untenable. The offence is the conspiracy to defraud by 
 fraudulent means; the description of the means is mere surplusage 
 as far as concerns the sufficiency of the indictment. (See sections 
 852 and 855 of the Code.) 
 
 The general effect of the provisions with regard to these mat- 
 ters is to wipe out technicalities and to make a criminal trial a 
 simple and business-like proceeding. HUNTER, C.J., at p. 491, in 
 R. v. Eutchinson, (1904) 8 C. C. C. 486, 11 B. C. E. 24. 
 
 It is not necessary in an indictment for conspiracy to set out 
 any overt acts, and the name of the person injured or intended to 
 be injured need not be stated therein. Ibid. 
 
 You may not introduce evidence to impeach the character of 
 your own witness, but you may go on with the proof of the issue 
 although the consequence of so doing may be to discredit the 
 witness in whole or in part. Ibid, pp. 494-495. 
 
 Extradition will lie as for a separate crime in respect of any 
 overt act of a conspiracy which constitutes one of the crimes men- 
 tioned in the extradition treaty between Canada and the United 
 States. Re Gaynor v. Greene (No. 3.), 9 C. C. C. 205. 
 
 A-: to contents of indictment see R. v. Goodfellow, (1906) 10 
 C. C. C. 425; R. v. Sinclair, (1906) 12 C. C. C. 20; R. v. Plum- 
 mer, [1902] 2 K. B. 339; R. v. Brailsford, [1905] 2 K. B. 730; B. 
 v. Gibson, 16 0. E. 704. 
 
 As to trade combines, see R. v. Elliott, (1905) 9 C. C. C. 505, 
 9 0. L. E. 648. 
 
 Two or more corporations may be indicted for conspiracy in 
 furthering of a trade combine under sec. 498 of the Code without 
 joining a personal defendant. R. v. Central Supply Assn. Ltd., 
 (1007) 12 C. C. C. 371.
 
 CONSPIRACIES CORROBOEATION. 71 
 
 Evidence of the nature of the conspiracy alleged may be given 
 before proof of the criminal agreement. Ibid. 
 
 Traders may legally organize for the protection and advance- 
 ment of their common interests, provided that the interests of the 
 public are not to be unduly impaired. R. v. Gage (No. 1), (1907) 
 13 C. C. C. 415. 
 
 Before the acts of one conspirator can be given in evidence 
 against another, it must be shewn that a conspiracy existed, that 
 the alleged conspirators were parties to the same and that the 
 acts in question were done in furtherance of the common design. 
 R. v. Gage (No. 2), (1908) 13 C. C. C. 428, 7 W. L. E. 564, & 18 
 M. E. 175. 
 
 The offence of conspiring to unduly prevent or lessen compe- 
 tition in the sale or supply of an article of commerce under sec. 
 498 (d) of the Code may exist without regard to the question 
 whether the effect of the combine has been to raise or lower prices. 
 R. v. Clarke (No. 1), (1907) 14 C. C. C. 46. 
 
 Where a defendant is arraigned and tried alone upon a charge 
 of conspiracy, he may be convicted and sentenced without first 
 proceeding with the trial of the co-conspirators. R. V. Clarice (No. 
 2), (1908) 14 C. C. C. 57, 9 W. L. E. 243, 1 Alta. L. E, 358. 
 
 Where a conspiracy is shewn to have been carried on in two 
 counties there is jurisdiction to commit for trial and to hold 
 the trial itself in either of the counties, or in another county 
 within the same province, if the accused persons are apprehended 
 in such other county. (Sec. 577 of the Code). R. v. 0' Gorman, 
 (1909) 15 C. C. C. 173, 18 0. L. E. 427, 13 0. W. E. 1189. 
 
 CORROBORATION". 
 
 1O02. No person accused of any offence under any of the hereunder 
 mentioned sections shall be convicted upon the evidence of one witness, 
 unless such witness is corroborated in some material particular by evi- 
 dence implicating the accused : 
 
 (a) Treason, Part II., section seventy- f our ; 
 
 (6) Perjury, Part IV., section one hundred and seventy-four; 
 
 (c) Offences under Part V., sections two hundred and eleven to two 
 hundred and twenty, inclusive ; 
 
 (d) Procuring feigned marriage, Part VI., section three hundred and 
 nine ; 
 
 (e) Forgery, Part VII., sections four hundred and sixty-eight to four 
 hundred and seventy inclusive. 
 
 Part V., sees. 211 to 220 inclusive, apply to offences against 
 women and girls, seduction, carnal knowledge and defilement.
 
 72 COEEOBOKATION. 
 
 At common law one witness was sufficient in all cases ,(with the 
 exception of perjury) both before the grand jury and at the trial. 
 2 Hawk. ch. 46, sec. 2. 
 
 In high treason where the overt act alleged is the assassination 
 of the King or any direct attempt against his life or person, one 
 witness is sufficient. 39 & 40 Geo. Ill, ch. 93 ; 5 & 6 Vic., ch. 51, 
 sec. 1. 
 
 One witness is sufficient to prove a collateral fact, as for in- 
 stance to prove that the defendant is a natural-born subject or the 
 like. E. v. Vaughan, 13 St. Trials, 485, at p. 535.
 
 JURISDICTION IN GENERAL. 73 
 
 CHAPTER III. 
 
 JURISDICTION OF JUSTICES IN GENERAL. 
 
 We have seen that in all the Provinces justices of the peace 
 and magistrates are appointed by the Lieutenant-Governor in coun- 
 cil under the Great Seal of the Province. But the territorial 
 limits differ. Some are appointed for counties, districts, cities 
 and towns; others are appointed for the whole Province. It is 
 necessary therefore for all appointees to look carefully to their 
 commissions and ascertain the limits within which they can exer- 
 cise their jurisdiction. 
 
 A justice of the peace cannot exercise his judicial functions 
 elsewhere than within the limits of his territorial jurisdiction. 
 R. v. Bowling, (1889) 17 0. R. 698; E. v. Hughes, (1884) 17 N. 
 S. R. 194. 
 
 His judicial acts must be done within the territorial limits of 
 the district, county or place for which he is appointed. R. v. Tot- 
 ness, 18 L. J. M. C. 46 ; R. v. Stockton, 7 Q. B. 520. 
 
 He may be specially authorized by statute, or his -commission, 
 or the order in council appointing him, to exercise his judicial 
 function elsewhere. The judicial acts of a justice (who is not 
 authorized otherwise) are, when performed outside of the territory 
 for which he is appointed, absolutely null and void. 
 
 Where a police magistrate for the County of Brant, whose com- 
 mission excluded the City of Brantford, convicted the defendant 
 of an offence against the Canada Temperance Act, committed at a 
 place in the county outside of the city, and the information was 
 laid, the charge heard and adjudicated upon and the conviction 
 made in the City of Brantford, it was held that the magistrate had 
 no jurisdiction. R. v. Beemer, 15 0. R. 266, decided in 1888 by 
 the Q. B. Division, although the C. P. Division had, in 1887 in 
 R. v. Lee, 15 0. R. 353, decided the other way. 
 
 An accused was charged under section 206 of the Code and 
 was convicted by the Stipendiary Magistrate of Vancouver County, 
 acting for and at the request of the Police Magistrate of Vancouver. 
 The conviction was made under section 77(7 of the Code. Held, 
 that the magistrate had no jurisdiction under sub-sec. 2 of that 
 section as he was not a Stipendiary Magistrate for the City of 
 Vancouver. R. v. Nar Singh, 10 W. L. R. 523, 14 C. C. C. 45(4.
 
 74 JURISDICTION GENERALLY. 
 
 A justice cannot do any coercive act (unless authorized by 
 a particular statute) out of his county, but voluntary information 
 and recognizances are good if taken by him anywhere. 2 Haw- 
 kins, ch. 8, sec. 78. That is to say, a Justice may perform minis- 
 terial acts out of his jurisdiction. Paley on Convictions, 8th ed., 
 19. Langwifk v. Dawson, 30 C. P. 375. 
 
 Instances of judicial acts are admitting to bail, taxing costs, 
 taking of an information, issuing summons or warrant of arrest. 
 
 Ministerial acts which may be done by the Justice anywhere are 
 issuing a warrant of commitment after conviction, the backing of 
 a warrant, granting a certificate of dismissal of a complaint, &c. 
 See Paley, 8th ed., 21 and 22, and cases there cited. Eeceiving an 
 information is now held to be a judicial act. R. v. Ettinger, 3 C. 
 C. C. 387. 
 
 A magistrate will be presumed, to be acting within the terri- 
 torial limits of his jurisdiction in the absence of evidence to the 
 contrary. R. v. Fearman, 22 0. E. 456. 
 
 The acts of a justice are either ministerial or judicial. 
 
 The test of an act being judicial or ministerial, is whether 
 the justices are entitled to withhold their assent, if they think fit, 
 or whether they can be compelled by mandamus, or rule, to do the 
 act in question. Per LORD CAMPBELL, C.J., in Staverton v. Ash- 
 burton, 24 L. J. M. C. 53. 
 
 The issue of a warrant of commitment in execution of a sum- 
 mary conviction is a ministerial and not a judicial act, and, there- 
 fore, although the special statute under which the conviction was 
 made was repealed before issue of warrant of commitment, the 
 latter may be issued notwithstanding the repeal. Re Thomas 
 Lynch, 12 C. C. C. 142. 
 
 Persons exercising judicial functions, but being also required to 
 perform ministerial acts, may be sued for damages occasioned by 
 their neglect to perform the latter, and formerly no allegation of 
 malice was necessary in such action. Ferguson v. Kinnoull, 9 
 01. & Fin. 251. 
 
 If a statute refers a matter to " any two justices " they must 
 be justices having jurisdiction according to the rules of the com- 
 mon law or by statute, and such words do not enable them to act 
 out of their jurisdiction either in respect of its local limits or 
 otherwise. Re Peerless, 1 Q. B. 143, 153. Paley, 8th ed., 22. 
 
 See also R. v. Giovanetti, 5 C. C. C. 157; R. v. Benner, 8 C. 
 "C. C. 398; R. v. Townshend, 11 C. 0. C. 94; Ex parte Tait, 10 C. 
 C. C. 513.
 
 JURISDICTION OTHEK QUALIFICATIONS. 75 
 
 If the summons is issued by another justice than the one who 
 heard the complaint, it is invalid, and the defect is not cured by the 
 defendant appearing to answer the summons if he objects to the 
 jurisdiction. Dixon v. Wells, 25 Q. B. D. 249. 
 
 As to the general question of the jurisdiction of justices of the 
 peace sitting in the absence of police magistrates: see R. V. Gor- 
 don, 16 0. E, 64; R. v. Lynch, 19 0. E. 664. 
 
 The appointment of a county police magistrate does not super- 
 sede a like previous appointment of another person ; both will have 
 jurisdiction unless the latter appointment is expressed to be in the 
 place and stead of the former. R. v. Spellman, 12 C. C. C. 99. 
 
 OTHER QUALIFICATIONS. 
 
 A justice is not only required to act within his territorial 
 jurisdiction, but must be duly qualified before he acts, and he 
 must not be disqualified by reason of interest, bias, or partiality. 
 
 In Ontario, Quebec and Manitoba, justices of the peace, as we 
 have seen, must have the necessary property qualifications and 
 nnrt take and subscribe the oath of qualification and oath of 
 office and file the same. In all the other provinces and the terri- 
 tories where no property qualification is required, justices of the 
 peace must take and subscribe the oath of office as prescribed and 
 file the same with the officer -indicated by the statute. Magistrates 
 must do the same. 
 
 Barristers, solicitors and advocates are not eligible as justices 
 of the peace while they continue to practice. Sheriffs and coroners, 
 except as to the latter in special cases, are also ineligible. 
 
 The acts done by a justice of the peace who is not duly qualified 
 and taken the oath at the session, are not absolutely void, and 
 therefore the person executing the warrant of such justice is not 
 answerable in an action of trespass. Margate Pier Co. v. Hannam, 
 3 B. & Aid. 266. 
 
 A police magistrate for one town in a county has no jurisdic- 
 tion to try a charge for an offence against a provincial statute 
 committed in another town having its own police magistrate in 
 the same county, except at the request of the latter or in his illness 
 or absence, notwithstanding the provisions of E. S. 0. 1897, cli. 
 87, sec. 30, now sec. 28 of ch. 36 of 10 Edw. VII. 
 
 When sitting elsewhere than in the town for which he is police 
 magistrate, a magistrate is ex officio a justice of the peace for the
 
 76 JURISDICTION QUALIFICATIONS. 
 
 whole county ; and, under section 30, K. S. 0., ch. 87, above referred 
 to, he has jurisdiction in offences against provincial laws to exer- 
 cise the powers of two justices, but not the powers of another police 
 magistrate. R. v. Holmes, 12 C. C. C. 235. In this case, MAGEE, 
 J., delivered a dissenting opinion, and the judgment of BRITTON, 
 J., in R. v. Spellman, (1906) 12 C. C. C. 99, was discussed. See 
 R. S. 0. 1914, ch. 88, sec. 34. 
 
 The above decision is upon a question of jurisdiction over 
 matters within the legislative authority of Ontario, and does not 
 affect or enlarge the general jurisdiction of magistrates under the 
 criminal law. See section 653 of the Code. 
 
 Authority of magistrate to act between date of order-in- 
 council appointing him and his formal commission. Held, ap- 
 pointment effective from the date of order-in-council appointing 
 him. R. v. Reedy, (1908) 14 C. C. C. 256. 
 
 An authority given by the statute to two cannot be executed 
 by one justice, but if given to one justice it may be executed by 
 any greater number. If the complaint be directed to be made to 
 any justice, though the statute should require the final determina- 
 tion to be by two, the complaint is well lodged before one. Paley, 
 8th ed., 38. See section 708 of the Code and R. v. Laughton, 20 
 C. C. C. 30, 22 M. R. 520. 
 
 The calling of a magistrate sitting in case as a witness does 
 not of itself disqualify him from further acting in the case. R. v. 
 Sproule, 14 0. R. 375. 
 
 Where the magistrate himself was called as a witness for the 
 defendant and refused to be sworn, if advantage is sought to be 
 taken of such refusal, it should be made apparent to the Court that 
 he was required bond fide as a witness; that he could give evidence 
 material upon the question it was proposed to interrogate him 
 upon, and that the party complaining has been prejudiced by the 
 refusal. Ex parte Flanagan, 2 C. C. C. 513, 34 N". B. R. 326. 
 
 All the cases on the question as to whether a Judge or juror 
 can properly be a witness in a case he is trying will be found in 
 R. v. Petrie, 20 0. R. 317, and see Ex parte Hebert, 4 C. C. C. 153. 
 
 The Court refused to quash a conviction under the Canada 
 Temperance Act, 1878, on the ground that one of the convicting 
 magistrates had not the necessary property qualification, the de- 
 fendant not having negatived the magistrate being a person within 
 the term of the exception or proviso of sec. 7, R. S. 0. 1877, ch. 
 71': R. v. Hodgins, 12 0. R. 367.
 
 DISQUALIFICATION OF JUSTICES. 77 
 
 Where a police magistrate appointed under E. S. 0. 1887, ch. 
 72, is paid a salary by the municipality instead of by fees, such 
 salary being in no way dependent on any fines which he may im- 
 pose, he has no pecuniary interest in the fines and so is not 
 thereby disqualified. Semble, that in such a case there would 
 have been no disqualification at common law. R. v. Fleming, 27 
 0. K. 122. 
 
 DISQUALIFICATION BY KEASON OF INTEREST OR BIAS. 
 
 Magistrates and justices of the peace should not take any part, 
 in any way, in any case in which they have any personal interest 
 of any kind whatsoever, whether pecuniary or otherwise, no matter 
 how small that interest may be. 
 
 No magistrate, however duly authorized in all other respects, 
 can act judicially in a case wherein he is himself a part} r . The 
 plain principle of justice that no one can be a judge in his own 
 cause, pervades every branch of the law,, and is as ancient as the 
 law itself. Co. Litt. 141A. This is so fundamental a maxim 
 as not to be overruled by any prescription. Lord Coke and Lord 
 Holt both go so far as to question whether even an Act of Parlia- 
 ment has power to ordain that the same person shall be both party 
 and Judge. Paley, 8th ed., 44. 
 
 The Lord Chancellor had granted relief sought by a company 
 in which he was a shareholder. The House of Lords held that 
 he was disqualified on the ground of interest from sitting as a 
 Judge in the cause, and that his decree must be reversed, - but it 
 was at the same time decided to be merely voidable and not void. 
 Dimes v. Grand Junction Canal Co., 3 H. of L. 759-785. 
 
 If one of the justices sitting is interested it will invalidate the 
 decision of all the justices even though a majority may have been 
 in favour of the decision without counting the vote of the in- 
 terested party. 
 
 A disqualifying interest does not apply only to a pecuniary in- 
 terest, but if the interest is not pecuniary it must be a substantial 
 interest. 
 
 Xo matter how small the pecuniary interast in the subject 
 matter is, the justice is disqualified, likewise if he has a real bias 
 in favour of one of the parties; but the mere possibility of bias in 
 favour of one of the parties does not of itself avoid a justice's 
 decision. R. v. J. J. Dublin, [1894] 2 Q. B. Ir. 527; R. v. Meyer,
 
 78 DISQUALIFICATION OP JUSTICES. 
 
 1 Q. B. D. 173 ; R. v. Rand, L. K. 1 Q. B. 230 ; R. v. Justices of 
 Sunderland, [1901] 2 K. B. 357. 
 
 If a justice has such an interest as might give him a real bias 
 in the matter he should not only take no part in the decision 
 which would render it void, but should entirely withdraw during 
 the whole case. Ibid. 
 
 On all occasions the Court of King's Bench has expressed its 
 strong disapprobation of justices sitting in judgment upon mat- 
 ters in which they are either directly or indirectly interested. 
 
 Not only should persons interested in a decision take no part 
 in it, but they should also avoid giving any ground for the belief 
 that they influence others in arriving at a decision. Upon the 
 trial of a parish appeal one of the justices, who was a rated in- 
 habitant of the appellant parish, was on the bench during the 
 hearing, and in the course of the proceedings referred the chair- 
 man of the quarter sessions to some of the documents put in evi- 
 dence. Upon an observation being made that he was interested, he 
 stated that he should take no part in the decision, but he remained 
 in C'ourt until the judgment, which was in favour of the appel- 
 lants, was given. It was sworn that he did not vote or give any 
 opinion upon the question, or influence the decision of the other 
 justices, but the order of sessions was held to be invalid by reason 
 of his presence and interference. R. v. J. J. Suffolk, 18 Q. B. 416, 
 and see R. v. J. J. Hereford, 2 D. & L. 500. 
 
 The Court will not enter into a discussion as to the extent of 
 the influence exercised by an interested party, and it is no answer 
 to the objection that there was a majority in favour of the judg- 
 ment without counting his vote, nor that he withdrew before the 
 decision, if he appears to have joined in discussing the matter with 
 the other magistrates. R. v. /. J. Hertford, 6 Q. B. 753. See 
 also R. v. Sudden, 60 J". P. 160. 
 
 Whenever there is a real likelihood that the Judge would, from 
 kindred, or any other causes, have a bias in favour of one of the 
 parties, it would be very wrong for him to act, and we are not to 
 be understood to say that, where there is a real bias> of this sort, 
 this Court will not interfere. Blackburn, J., in R. v. Rand, L. R. 
 1 Q. B. 230. 
 
 Where there were uncontradicted affidavits that the magis- 
 trate had stated that he would convict any parties charged before 
 him with selling liquor, whether the evidence proved it or not, if 
 he believed them to be guilty, it was held that a disqualifying
 
 DISQUALIFICATION OF JUSTICES. 79 
 
 bias was shown, and a conviction by him on such a charge was 
 quashed: E. v. Rand, 22 C. 0. 0. 147. 
 
 Where a Judge is a member of a small class of privileged per- 
 sons, he cannot adjudicate in proceedings taken against a person 
 for an infringement of the privileges of such a class. R. v. Hug- 
 gins, [1895] 1 Q. B. 563. 
 
 A party who has no knowledge of the interest at the time of 
 the inquiry does not waive the objection on that ground by ap- 
 pearing and taking part in the proceedings. R. v. Sheriff of 
 Warwickshire,, 3 W. E. 164, and see Ex parte McEwen, (1906) 
 12 C. C. C. 97. 
 
 But if a party in a criminal proceeding, knowing the interest, 
 consents to the interested magistrate acting, he cannot afterwards 
 raise any objection upon this ground. R. v. Cheltenham Com- 
 missioners, 1 Q. B. 467; R. v. J. J. Antrim, (1895) 2 IT. E. 603. 
 
 An order for prohibition was granted against two justices of 
 the peace on the ground that they were disqualified from adjudi- 
 cating on a charge for a violation of the Canada Temperance Act, 
 by reason of their being associated with a Temperance Alliance, of 
 which the president was the party prosecuting, and which associ- 
 ation benefited by any fine imposed. Daignault v. Emerson, 5 
 G. C. 0. 534. But see R. v. Woodroof, 20 C. C. C. 17. 
 
 A magistrate who is engaged in the same kind of a business as 
 a trader prosecuted under a transient trader's license law is thereby 
 disqualified from adjudicating on the charge. FALCONBEIDGE, 
 J., who delivered the judgment of the Divisional Court, said: 
 " It is only necessary to read the affidavit of the convicting magis- 
 trate to see that he was disqualified to sit or adjudicate on this 
 case by reason of his being engaged in the same kind of business 
 as the defendant. . . . We are not going to weigh in nice 
 scales the extent to which the mayor and the defendant are rivals 
 in trade, nor are we bound by the mayor's statement that he does 
 not consider that the defendant is conducting a business in oppo- 
 sition to his, the mayor's and convicting magistrate's. R. v. 
 Leeson, (1901) 5 C. C. C. 184. 
 
 The defendant was convicted before a stipendiary magistrate, 
 presiding in the town of Truro, of selling intoxicating liquors, 
 contrary to law. The magistrate was a ratepayer of the town, 
 and received a fixed salary as stipendiary, payable out of the 
 funds of the town, to which half the penalty imposed became pay- 
 able. Held, that the magistrate was disqualified by interest from 
 acting in the matter. Tupper v. Murphy, 3 E. & G. N". S. 173.
 
 80 DISQUALIFICATION OF JUSTICES. 
 
 This case can no longer be considered good law. See R. v. 
 Holyoke, 21 C. C. C. 422; R. v. Suck Sin, 16 C. 0. 0. 266, 20 M. 
 R. 720; Ex parte McCoy, 1 C. C. C. 410, and Ex parte Wilson, 15 
 C. C. C. 264. 
 
 A magistrate is not disqualified from hearing an information 
 under the Summary Convictions Act by reason of the defendant's 
 wife being the widow of a deceased son of the magistrate. Ex 
 parte Wallace, 26 N. B. R. 593. 
 
 A conviction for cruelty to animals was quashed because one 
 of the justices was the father of the complainant. In re Holman, 
 3 R. & C. N. S. R. 375. 
 
 In an assault case the complainant was the daughter of the 
 convicting justice. Held, improper for the justice to sit and try 
 the case, the complainant being his daughter, and that this was a 
 good ground for quashing the conviction. E. v. Lang ford, 15 0. 
 R. 52. 
 
 A magistrate is incompetent under the " Canada Temperance 
 Act," if his grandfather is a brother of the defendant's great 
 grandmother. Ex parte Laughley, 28 N. B. R. 656. 
 
 The cases relating to disqualification of a justice of the peace 
 or magistrate by reason of interest, are referred to fully in R. v. 
 Klemp, 10 0. R, 143. 
 
 It is not a ground for disqualification, that the justice and 
 the counsel who conducted the prosecution are partners in business 
 as attorneys, provided they have no joint interest in the fees' 
 earned by the counsel in the prosecution, or in any fees 'payable 
 to the justice" 6n tne trial 01 the' information. R. v. Grimmer, 
 25 N\ B. R. 4S 
 
 On a charge of a second offence of selling liquor without a 
 license, the magistrate is not disqualified from trying the case 
 because of the previous conviction alleged having been made by 
 him: R. v. Reid, 14 C. C. C. 329; R. v. Wellman, 14 C. C. 0. 335. 
 
 Two of the four convicting justices were licensed auctioneers 
 for the county and persisted in sitting after objection taken on 
 account of the interest, though the case might have been disposed 
 of by one justice. Held, that they were disqualified, and the con- 
 viction was quashed and they were ordered to pay the costs. R. 
 V. Chapman, 1 0. R. 582. 
 
 See also Campbell v. Mclntosli, (1872) 1 P. E. I. R. 4 '2., : R. 
 v. Hart, 2 B. C. R. 264; Ex parte Scribner, 32 X. B. R. 175: R.
 
 DISQUALIFICATION OP JUSTICES. 81 
 
 v. Major, 29 N. S. E. 373; R. v. Batson, 12 C. O. C. 62; Ex 
 parte McCleave, (1908) 14 C. C. C. 18; Ex parte Gallagher, 
 (1908) 14 0. C. C. 38; R. v. Lorrimer, (1909) 14 C. 0. C. 430. 
 
 To invalidate a conviction on the ground of bias in the con- 
 victing magistrate it is not necessary that actual bias should be 
 proved, and the conviction will be quashed if the facts justify a 
 reasonable apprehension of bias. If the accused is aware of the 
 disqualifying circumstances at the time of the hearing before the 
 magistrate he should take objection then to the magistrate acting. 
 
 Where the prosecutor is the magistrate's father and the stat- 
 ute under which the prosecution is brought entitles the prosecutor 
 to a share of any fine imposed, the justice is disqualified from ad- 
 judicating in the case. Conviction quashed. Meredith, C. J. : " It 
 is of the utmost importance I think, in a comparatively new 
 country, such as this, where the magistrates are for the most part 
 untrained men, and in many cases having unnecessarily but a limi- 
 ted knowledge of the law which they are called upon to adminis- 
 ter, that the supervising power of the Court over their decisions 
 should be fully exercised to prevent adjudications being given 
 effect to where they are at variance with the fundamental prin- 
 ciples upon which our law is and must be administered in order 
 to command the respect of the community, or where the constitu- 
 tion of the tribunals by which they are pronounced is such as to 
 create a well founded suspicion of unfairness." R. v. Steele, 
 (1895) 2 C. C. 0. 433. 
 
 In R. v. Steele, Meredith, C.J., quotes and reviews nearly all 
 of the leading English cases upon the subject of interest and bias. 
 
 Litigation bona fide pending between the accused and the mag- 
 istrate gives rise to a presumption of bias at the time. Ex parte 
 Daigle, 18 C. C. C. 211. 
 
 A justice of the peace is not disqualified from taking an in- 
 formation because the informant is his second cousin: Campbell 
 v. Walsh, 18 C. C. 0. 304. 
 
 The connection of the magistrate with a society which sup- 
 plied funds, part of which were used to make the purchase upon 
 which the prosecution of illegal sale of liquor was based, because of 
 his being an honorary member of the society, but not entitled 
 to take any part in its affaris, is not a ground of disqualification. 
 R. V. Herrell, (1898) 1 C. C. C. 510. See also Leeson v. General 
 Council of Medical Education, (1889) 43 Ch. D. 366; Allinson v. 
 
 C.C.P. 6
 
 83 QUESTIONS OF TITLE TO LAND. 
 
 General Council, [1894] 1 Q. B. 750; Ex parte Van Buskirk, 13 
 C. G. C. 234. 
 
 Where the magistrate is interested the proper course to take 
 is to apply for a writ of prohibition. R. v. Brown, 16 0. R. 41. 
 
 A writ of certiorari will also lie where there is a real bias. 
 R. v. Justices of Sunderland, [1901] 2 K. B. 357 ; R. v. Hain, 12 
 T. L. R. 323. 
 
 The objection, jf known to the accused, should be taken at the 
 outset of the caseT If he goes on and does not take the objection 
 it will be waived? Wakefield v. West Midland & (T. Ry., 10 Uox 
 162; R. v. J. J.' Antrim, [1895] 2 Q. B. Ir. 603 ; R. v. Steele, 
 supra. See also R. v. Stone, 23 0. R. 46 ; R. v. Clarke, 20 0. R. 
 642. 
 
 See section 578 of the Code forbidding certain persons from 
 sitting at the trial of cases under section 501 for intimidation. 
 
 OUSTER or JURISDICTION. 
 
 Questions of Title to Land. 
 
 7O9. No justice shall hear and determine any case of assault or 
 battery in which any question arises as to the title to any lands, tenements, 
 hereditaments or any interest therein or accruing therefrom, or as to any 
 bankruptcy, or insolvency, or any execution under the process of any Court 
 of Justice. 
 
 The justices' jurisdiction is only to enquire into the good faith 
 of the parties alleging title and the}- must not convict where a real 
 question as to the right to property is raised between the parties. 
 Their jurisdiction is at an end, and the question of right must 
 be settled by a higher tribunal. By convicting, the justices would 
 be settling a question of property conclusively and without remedy 
 if their decision happened to be wrong. BLACKBURN, J., in R. v. 
 Stimpson, 4 B. & S. 301 ; R. v. Davidson, 45 IT. C. R. 91. 
 
 It has always been held as a maxim that where the title to 
 real property is in question the exercise of a summary jurisdiction 
 by justices of the peace is ousted. This principle was not founded 
 upon any legislative provision, but is a qualification which the law 
 itself raises in the execution of penal statutes, and is always im- 
 plied in this construction, and so rigid is this rule that even where 
 a statute allows the accused to go into the question of title, he 
 is not obliged to do so and may object to the jurisdiction of the 
 justices. R. v. Burnaby, 1 Salk. 181 : Johnston v. Meldon, 30 
 L. R. Ir. 15: R. v. Cridland, 7 El. & Bl. 853.
 
 QUESTIONS OF TITLE TO LAND. 83 
 
 When a bona fide claim ia made which is not obscure or im- 
 possible, the justices have no jurisdiction and ought not to con- 
 vict or make any further inquiry. Scott v. Baring, 18 Cox 128; 
 R. v. Taylor, 8 TJ. C. R. 257; R. v. Cridland, supra. 
 
 The jurisdiction of a justice is not to be ousted by a mere 
 pretence of title or even by a bona fide claim of right which in 
 law cannot exist. R. v. Wrottesley, 1 B. & Ad. 648; Simpson 
 v. Wells, 41 L. J. M. 0. 105 ; Hargreaves v. Di'ddams, 44 L. J. M. 
 C. 178. 
 
 If the justices believe there is a bona fide question of title 
 they have no jurisdiction. Legg v. Pardoe, 9 C. B. N. S. 2.89, 30 
 L. J. M. C. 108. 
 
 Where the matter is doubtful they should stop their proceed- 
 ings as they cannot give themselves jurisdiction by a false decision. 
 R. V. Nunneley, E. B. & E. 852 ; R. v. Stimpson, 4 B. & S. 301. 
 
 Where, in the prosecution for an injury done to grown trees to 
 the value of twenty-five cents, the defendant set up and proved 
 a bona fide claim of title, the Court held that the jurisdiction of 
 the justice was ousted. R. v. O'Brien, 5 Q. L. R. 161. 
 
 Where a justice proceeded with a charge of destroying a line 
 fence. Held, the magistrate should have stopped the trial as 
 soon as he found that the title to land was in question. Ex parte 
 Roy, 12 C. C. C. 533. 
 
 If the facts lead to one conclusion only and that against the 
 defendant, and there is no contradictory evidence, then there is no 
 bona fide question of title and the jurisdiction will not be ousted. 
 Moberley v. Collingwood, 25 0. R. 625. 
 
 A claim of title, to oust the jurisdiction of the magistrate in 
 a case of trespass, must be a claim of title in the party charged, 
 and not a mere allegation of a jus tertii or of a defect in the 
 claimant's title: R. v. Harron, 20 C. 0. C. 72. 
 
 When the defendant was estopped from denying the title of 
 plaintiff, or from claiming title in himself, there is no bona fide 
 claim of title and jurisdiction is not ousted. Bank of Montreal v. 
 Gilchrist, 6 A. R. 659 ; Wickham v. Lee, 12 Q. B. 521. 
 
 See also R. v. Malcolm, (1883) 2 0. R, 511, and R. v. Mc- 
 Donald, 12 0. R. 381 ; R. v. Magistrates of Ballycastle, 9 L. T. R. 
 N. S. 88 ; Watkins v. Major, 33 L. T. R. N. S. 352 ; R. v. Lacour- 
 siere, 8 M. R. 302; Robichaud v. LeBlanc, (1898) 34 C. L. J. 324 
 (N.B.) ; Paley, 8th ed., 157-165.
 
 84 OUSTER OF JURISDICTION. 
 
 See Part VIII. of the Code, section 510, as to mischief, under 
 which is included the wilful destruction or damage to any pro- 
 perty. The question of title is liable to arise in these cases. Sec- 
 tion 539 deals with cases of injuries to property not already pro- 
 vided for in the preceding sections. A limitation to proceedings 
 under this section is provided by section 540 as follows: 
 
 54O. Nothing in the last preceding section extends to (a) any case 
 where the person acted under a fair and reasonable supposition that he had 
 a right to do the act complained of; or (6) any trespass not being wilful 
 and malicious committed in hunting or fishing, or in the pursuit of game. 
 
 Under this section the magistrate's jurisdiction in respect of a 
 charge of wilful injury to property is not ousted unless the act 
 was done under a fair and reasonable supposition of right, and the 
 magistrate has jurisdiction to summarily try the charge notwith- 
 standing the mere belief of the accused that he had a right to do 
 the act complained of. 
 
 What the sections require in order to oust the jurisdiction of 
 the magistrate is that the act shall be done under a fair and rea- 
 sonable supposition of right. Whether such supposition is war- 
 ranted is for the magistrate to determine upon the evidence. 
 LISTER, J.A., at p. 32, in R. v. Davy, 4 C. C. C. 28. 
 
 I quite agree that magistrates cannot give themselves jurisdic- 
 tion or retain jurisdiction by finding a particular fact one way, 
 if the evidence is clearly the other way. COCKBURN, C.J., in 
 White v. Feast, (1872) L. R. 7 Q. B. 353*. 
 
 See also Denny v. Thwaites, (1876) 2 Ex. D. 21; Reece v. 
 Miller, (1832) 8 Q. B. D. 626; Ex parte Vaughan, (1866) L. R. 
 2 Q. B. 114. 
 
 ASSOCIATE JUSTICES AND PRIORITY. 
 
 Where a single justice of the peace has authority to try a 
 charge he may ask other justices to sit with him and a conviction 
 made by all of them jointly is valid. R. v. Leconte, 11 C. 0. C. 
 41. See section 708 of the Code. 
 
 All the justices in each county are equal in authority; but, as 
 it would be contrary to the public interest as well as indecent that 
 there should be a contest between different justices, we must lay 
 down the rule that, when a party charged comes, or is brought 
 before, a magistrate in obedience to a summons or warrant, no 
 other magistrate shall interfere in the investigation of, or adjudi-
 
 ASSOCIATE JUSTICES. 85 
 
 cation, upon the charge, except at his request. ARMOUR, C.J., in 
 R. v. McRae, 2 C. C. C. 49, at p. 51. It was -held in this case 
 that a conviction by the justice who summoned the accused and 
 heard the charge will be upheld although three other justices at- 
 tended the hearing and purported to dismiss the charge, if these 
 justices sat without the request or consent of the summoning jus- 
 tice. There was evidence also that the other justices were pre- 
 sent at the request of the defendant. 
 
 While the general principles governing in a competition 
 amongst justices as to authority are expressed in the judgment of 
 ARMOUR, C.J. (R. v. McRae), quoted above, it may be added that 
 it is laid down that the jurisdiction in any particular case at- 
 taches in the first set of justices, duly authorized, who have pos- 
 session and cognizance of the case to the exclusion otf the separate 
 jurisdiction of all others. So that the acts of any other, except 
 in conjunction with the first, are not only void, but such a breach 
 of law as subjects them to indictment. R. v. Sainsbury, 4 T. E. 
 456; R. v. Great Mwrlow, 2 East. 244; R. v. Bloom, 15 D. L. E. 
 484, 22 C. C. C. 205. 
 
 As will be seen later in discussing procedure under the differ- 
 ent sections of the Code relating to the issuing of process, there 
 are cases where justices other than those who issued the process, 
 or were first seized of the case, may act. See sec. 708 of the Code. 
 In prosecutions under the Nova Scotia Liquor License Act or the 
 Canada Temperance Act, the two justices should both be present 
 when the information is laid and the summons granted, but only 
 one need sign the information, and the conviction should shew 
 on its face the facts necessary to give jurisdiction to the one not 
 signing. R. v. McKenzie, 23 N. S. E. 6 ; R. v. Brown, 23 N". S. 
 E. 21; R. v. Ettinger, 3 C. C. C. 387. 
 
 A justice of the peace acting in the illness, or absence, or at 
 the request, of a police magistrate, should be designated as so act- 
 ing in warrants or other process., otherwise the latter will be 
 invalid. A warrant signed by a justice of the peace so acting, 
 in which he is described as " police magistrate," is void, R. v. 
 Lyons, 2 C. C. C. 218. 
 
 The " absence " intended by the Act is not actual absence 
 from the jurisdiction or even from the place of trial, but includes 
 inability to attend to the business of the Court such as was proved 
 in this case: Ex parte Cormier, 17 C. C. C. 179. 
 
 The initials " J. P." following the signature of the person issu- 
 ing a warrant do not describe him with sufficient fullness as a
 
 86 IRREGULAR PROCEDURE. 
 
 justice of the peace for the city or county in which the warrant 
 purports to be issued. E. v. Lyons, supra. See also E. v. Hong 
 Lee, 10 W. L. R. 376, 15 0. C. C. 39 ; E. v. Duggan, 21 O. L. T. 
 Occ. N. 35. 
 
 Where evidence on a preliminary inquiry is commenced before 
 one justice of the peace and finished before two justices, a com- 
 mittal by the two justices is. irregular unless both have heard all 
 the evidence. E. v. Nunn, 2 C. C. C. 429; Ee Guerin, (1888) 16 
 Cox C. C. 596; and see E. v. Milne, 25 O. P. 94. 
 
 Sub-section 3 of sec. 708 of the Code does not apply to the 
 preliminary hearings of indictable offences, and the magistrate, 
 who has issued the summons or warrant for an indictable offence, 
 must proceed with the preliminary hearing, and no other magis- 
 trate may take the matter up and hold the hearing, even with the 
 consent of the first magistrate, except when authorized by statute 
 in special circumstances, such as illness or absence of the first 
 magistrate. Ee Holman & Eea (No. 2), 21 C. C. C. 11. 
 
 A verbal conviction by two justices cannot be reversed, after 
 one has gone away, by one of them and another justice, but either 
 of two convicting justices has a right to change his mind before the 
 conviction is drawn up, the effect then being that there is no con- 
 viction, and it would be possible to proceed again for the same 
 offence. Jones v. Williams, 36 L. T. N. S. 559, 46 L. J. M. C. 
 270. 
 
 Where more than one justice is present the decision is that of 
 the majority. The chairman has no casting vote. If the justices are 
 equally divided, there can be no adjudication, and the case may 
 be again heard on a fresh information or complaint, or adjourned 
 to the next sitting, when it can be reheard with the assistance of 
 other justices. Paley, 8th ed. 125 ; Kinnis \. Graves, 19 Cox 42 ; 
 Ex parte Evans, [1894] A. C. 16. 
 
 After the justices, or a justice, have once given judgment, and 
 after the Court is closed, they have no power to re-open the in- 
 quiry. Their judgment can be appealed from, or moved against 
 by certiorari. 
 
 LOCALITY OF CRIME OR OFFEXCE. 
 
 All crime is local, and the jurisdiction over the crime belongs 
 to the country where the crime is committed, llacleod v. New 
 South Wales, [1891] A. C. 455. See E. v. Blytlie, 1 C. C. C. at 
 p. 284.
 
 LOCALITY OF CRIME OR OFFENCE. 87 
 
 The offence of having in has , possession a dog which has wor- 
 ried, injured and destroyed sheep is committed where the dog is 
 kept, and not where the sheep have been worried, injured or de- 
 stroyed. R. v. Duering, 5 C. C. O. 135. 
 
 A magistrate may hold, a preliminary inquiry in respect of an 
 indictable offence committed in the same Province outside ot' his 
 territorial jurisdiction if the accused is, or is expected to be, within 
 the limits over which such magistrate has jurisdiction, or resides" 
 or is suspected to reside within such limits. E. v. BurTce, 5 0. 0. d 
 2!T See ss. t>03 and 577 of the Code. , 
 
 If an accused person is charged with having committed an in- 
 dictable offence within the limits over which a justice has jurisdic- 
 tion, the justice may issue a warrant or summons. Sec. 653 (&) 
 of the Code. 
 
 A magistrate's jurisdiction to make a summary conviction must 
 appear on the, face of the proceedings, or he will be presumed to 
 have acted without jurisdiction. The conviction did not shew 
 where the offence had been committed, or that it had been com- 
 mitted ,in Manitoba. Johnston v. O'Reilly, 12 C. 0. C. 219. 
 
 See, however, R. v. McGregor, 2 C. C. 0. 410, where it was 
 held, on the proper interpretation of section 889 (now 1124) of 
 the Code, that the Court might go behind the conviction and look 
 at the depositions and back to the warrant referred to therein, to 
 find a statement of the locality of the crime sufficient to uphold 
 the .conviction. 
 
 Where the information upon which a summary conviction is 
 based charges that the offence was committed at a named locality 
 stated to be within the province for which the magistrate has 
 jurisdiction, a conviction in the same terms will be presumed to 
 have been made for an offence wthin the same territorial jurisdic- 
 tion, although no evidence was given to shew that the locality 
 specified is within the limits, of that province. Application by the 
 defendant company to quash a conviction for an offence under s. 6 
 of the Lord's Day Act, dismissed. R. v. C. P. Railway Co., 
 (1908) 14 C. C. C. 1. 
 
 Where the accused was charged with making, circulating and 
 publishing false statements in reference to the financial status of a 
 company, and these statements were mailed from a place in Ontario 
 to parties in Montreal, the offence, though commenced in Ontario, 
 is completed in Quebec by the delivery of the letters to the parties 
 to whom they were addressed. The Courts of Quebec were held to 
 have jurisdiction to try the accused if he has been duly committed
 
 88 LOCALITY OF CRIME OR OFFENCE. 
 
 for trial by a magistrate of the district. R. v. Gillespie (No. 2), 
 (1898) 2 C. C. O. 309. See R. v. Gvrdwood, 2 East P. C. 1116; 
 R. v. Esser, 2 East P. C. 1125; R. v. Burdett, 4 B. & Aid. 95. In 
 these cases it was held that the accused was rightly committed and 
 tried in the judicial district where the letters had heen addressed 
 and delivered to the parties threatened, although written and 
 posted in another district. And see R. v. Jones, 1 Den. 558. 
 
 In Fournier v. Atty. Gen., 17 0. C. 0. 108, it was held that a 
 newspaper editor might be proceeded against at Quebec for a 
 scandalous contempt against the judges holding court there, al- 
 though the publications complained of took place at Montreal. 
 
 Where the offence was committed in the county of Middlesex, 
 in which county the accused resided, and proceedings against them 
 were .commenced in Toronto, and the accused were arrested in 
 London^ (which is in Middlesex) and brought to Toronto for trial. 
 Held, . they could not be tried in Toronto, notwithstanding provi- 
 sions of ss. 577 and 653 of the Code. R. v. O'Gorman et al. f 18 
 0. L. E. 427. 
 
 When once the Parliament of Canada has given jurisdiction 
 to a provincial Court, whether superior or inferior, or to a judicial 
 officer to perform judicial functions in the adjudicating of matters 
 over which the Parliament of Canada has exclusive jurisdiction, 
 no provincial legislation, in our opinion, is necessary in order to 
 enable effect to be given to such parliamentary enactments. SEDGE- 
 WICK, J., in Re Vancini (No. 2), (1904) 8 C. C. C. 228, 34 S. C. 
 R. 621. 
 
 Accused was charged with shopbreaking and theft from pre- 
 mises situate at the town of Sydney in Nova Scotia. He was 
 arrested in Halifax and was brought before, and consented to be 
 tried summarily by, the Stipendiary Magistrate for the City of 
 Halifax. He pleaded guilty, was convicted and sentenced to five 
 years in the penitentiary at Dorchester. 
 
 The convict applied to a Judge of the Supreme Court of New 
 Brunswick (in which province Dorchester is situated) for a writ 
 of habeas corpus. This application was referred to the full Court, 
 and the writ was refused. The Supreme Court of N. B. held that 
 the Halifax stipendiary had jurisdiction, while acting within the 
 local limits of his jurisdiction, to summarily try the prisoner with 
 his consent (Code ss. 771, 777), for an offence committed outside 
 of his territorial jurisdiction, but in the same Province. Ex parte 
 Seeley, (1908) 13 0. C. C. 259.
 
 JURISDICTION OF COURTS. 89 
 
 Seeley then applied to Mr. Justice Girouard of the Supreme 
 Court of Canada for a writ of habeas corpus; this application was 
 refused, and the prisoner then appealed to the Supreme Court 
 from this refusal. 
 
 The Supreme Court of Canada affirmed the judgment of the 
 Supreme Court of New Brunswick by dismissing the application. 
 The Chief Justice., Sir Charles Fitzpatrick, in the concluding para- 
 graph of his judgment, says. " I construe sections 554, 557 and 
 785 (now in Revised Code (1906), ss. 653, 665 and 777) taken to- 
 gether to mean that, when an offence is committed within the 
 limits of a Province, any presence, however transitory, of the ac- 
 cused in any part of that Province, will justify the exercise of ~as 
 full _ and complete jurisdiction as if the offence was committed 
 where the offender is apprehended, leaving the magistrate a dis- 
 cretionary power to send the prisoner for further inquiry, or for 
 trial beiore the justice Having jurisdiction over the locus wnere 
 the offence was committed." He Seeley, (1908) 14 C. C. C. g?0, 
 41 si. U. K. 5. 
 
 On matters of jurisdiction, see the following sections of the 
 Code: 576, 577 et seq., Part XI., and s. 653, Part XIII.
 
 90 ACTIONS AGAINST JUSTICES. 
 
 CHAPTER IV. 
 
 RESPONSIBILITY OF JUSTICES AND REMEDIES AGAINST THEM. 
 
 Magistrates and justices of the peace may render themselves 
 liable in damages and to criminal proceedings if they exercise the 
 functions of their office illegally. 
 
 The general rule is that a justice, like other judges, is not liable 
 for any mistake, or error of judgment, or for anything he does 
 judicially when acting within his jurisdiction, although he may be 
 wrong. Gordon v. Denison, 24 0. R. 576, 22 A. R. 315, and cases 
 there cited. See also Re McMicken, 21 C. C. C. 334. 
 
 In Dawkins v. Potdet, L. R. 5 Q. B. 94, it was held that an ac- 
 tion would not lie against a County Court Judge or a military 
 officer for words maliciously and not boma fide spoken by them, in. 
 the course of the discharge of their duty. 
 
 It would seem, from the principle of recent cases in England, 
 that a justice cannot be sued for acts done maliciously in the 
 course of dealing with a matter over which he has jurisdiction. 
 Scott v. Stansfield, L. R. 3 Ex. 220. See also Garner \. Coleman, 
 1.9 C. P. 106; Agnew v. Stuart, 21 IT. C. R. 396. But now in 
 many of the Provinces and in England since 11 & 12 Yic., c. 44, 
 this is no longer the law. See next page. 
 
 When a justice acts without jurisdiction, or in excess of it, he 
 becomes liable to an action whether he be acting judicially ->r 
 ministerially. Crepps v. Durden, 2 Cowp. 640; 1 Smith's L. C. 
 (llth Ed.) 651. 
 
 But when means of knowledge, as distinguished from know- 
 ledge actual or imputed, is relied upon to sustain an action against 
 a justice actng judicially for an act done without jurisdiction, the 
 action will lie only when he has acted maliciously and without rea- 
 sonable and probable cause. Johnston v. Meldon, 30 L. R. Ir. 15. 
 
 Where a justice of the peace acts judicially in a matter in 
 which by law he has jurisdiction and his proceedings appear to be 
 good upon the face of them, no action will lie against him, or, if 
 an action is brought, the proceedings themselves will be a sufficient 
 justification. Brittain v. Kinnaird, 1 B. & B. 432; Fatvcett v. 
 Fowlis, 7 B. & C. 394.
 
 VEXATIOUS ACTIONS AGAINST JUSTICES. 91 
 
 VEXATIOUS ACTIONS AGAINST JUSTICES. 
 
 In the Statutes of the Provinces of Ontario, Quebec, Nova 
 Scotia and New Brunswick, relating to the protection of justices, 
 which are summarized in Chapter I., and which are founded upon 
 the English Statute, 11 & 12 Vic., c. 44, it is provided that, in ac- 
 tions brought against police magistrates or justices of the peace 
 for any act done by them in the execution of their duties with 
 respect to matters within their jurisdiction, it shall be expressly 
 alleged in the statement of claim that the act was- done maliciously 
 and without reasonable or probable cause, and, if at the trial the 
 plaintiff fails to prove such allegation, he shall be non-suited or a 
 verdict given for the defendant. 
 
 The English Statute, above referred to, is also in force in 
 Manitoba, where the Legislature has not dealt with the subject! 
 
 For any act done by justices in matters in which by law they 
 have not jurisdiction, or in which they have exceeded their juris- 
 diction, or for any act done under a conviction, order, or warrant 
 issued by them in such matter, any person injured may maintain 
 an action against the justices as he might have done before the 
 passing of the Act, without making any allegation in his statement 
 of claim that the act complained of was done maliciously and with- 
 out reasonable and probable cause. 
 
 If one justice makes a conviction or order and another justice 
 in good faith issues and signs a warrant of distress or commitment 
 thereunder, the action, if any, must be against the justice who 
 made the conviction or order. 
 
 In case any justice of the peace has granted a warrant of dis- 
 tress or commitment upon a conviction or order which either 
 before or after the granting of the warrant has been confirmed 
 upon appeal, it is provided that no action can be brought against 
 the justice by reason of any defect in the conviction or order for 
 anything done under the warrant. 
 
 No action can be brought for anything done under a conviction 
 in a matter of which by law the justice has not jurisdiction or in 
 which he shall have exceeded his jurisdiction until the conviction 
 or order has been quashed, either on appeal or on application to 
 the High Court. 
 
 It has been held that by this provision no action can be brought 
 for anything done under a conviction so long as it has not been 
 quashed and is still in force, whether there was jurisdiction to
 
 92 ACTIONS AGAINST JUSTICES. 
 
 make the conviction or not. But the magistrate is not protected 
 if the conviction does not justify what has been done under it. 
 Arscott v. L&ley, 11 0. E. 285, 14 A. E. 283. 
 
 The discharge of a prisoner on habeas corpus is not a quashing 
 of his conviction under the statute. Hunter v. Gilldson, 7 0. 
 R. 735. 
 
 Neither is the amending of a conviction by the Sessions on 
 appeal striking out the award of hard labour a quashing of the 
 conviction. McLellan v. McKinnon, 1 0. E. 219. 
 
 In an action against magistrates, it was ascertained that the 
 conviction was not under seal. Held, that it was not necessary 
 that the conviction should have been quashed before action. 
 Haacke v. Adamson, 14 0. P. 201, and McDonald v. Stuckey, 31 
 U. C. E. 577, followed. Bond v. Conmee, 15 0. E. 716, 16 A. 
 E. 398. 
 
 When a warrant was improperly endorsed, held, that it was 
 not necessary to quash the conviction before action brought, as 
 the arrest was not anything done under a conviction or order 
 within E. S. 0. 1887, c. 73, s. 4. Jones v. Grace, 17 0. E. 681. 
 As to whether a search warrant must be quashed before an action 
 can be brought against a magistrate in respect of its enforcement, 
 see Johnston v. McDougall, 17 C. C. C. 58. 
 
 If an action of trespass be brought against a magistrate for 
 convicting a person and causing him to be imprisoned in a case 
 where the magistrate had jurisdiction, the plaintiff must be non- 
 suited if a valid and subsisting conviction be proved and adduced. 
 Stamp v. Sweetiand, 14 L. J. M. C. 184. 
 
 If a justice exceeds the authority the law gives him in his 
 ministerial acts, lie thereby subjects himself to an action, e.g., if 
 he commits a prisoner for re-examination for an unreasonable 
 time, although he do so from no improper motive, he is liable to 
 an action for false imprisonment. Davis v. Copper, 10 B. & C. 28. 
 
 If a justice maliciously commits a man for a supposed crime 
 when there has in fact been no accusation against him, he is liable 
 to an action for trespass for false imprisonment. Morgan v. Hughes, 
 2 T. E. 225 ; but if he commits him for a reasonable time, although 
 the statute under which he is acting gives him no authority to do 
 so, he is not liable to an action, if authority so to commit is given 
 to justices by another statute. Gelan v. Hall, 27 L. J. M. C. 78. 
 
 If the justice acts without jurisdiction, or in excess of it, he is 
 liable whether his acts are judicial or ministerial. A mere irregu- 
 larity, or erroneous judgment, will not be an excess of jurisdiction.
 
 ACTIONS AGAINST JUSTICES. 93 
 
 There must be an act done which there is no jurisdiction to do. 
 Parker v. Etter, 33 N. S. E. 52. 
 
 After a conviction by a magistrate is quashed, an action on the 
 case will not lie against him, unless the acts complained of be 
 proved to have been committed by him without any reasonable or 
 probable cause and maliciously, and the question of malice must 
 be left to the jury. Burney v. Gorham, 1 C'. P. 358. 
 
 If a magistrate causes a party to be wrongfully imprisoned 
 without any reasonable cause until he gives his note to obtain a 
 discharge, the magistrate is liable in trespass. Brennan v. Hatelie, 
 6 0. S. 308. 
 
 A justice of the peace who issues a warrant without jurisdic- 
 tion, as on an insufficient information, is liable to an action for 
 trespass for assault and false imprisonment, and the question of 
 reasonable and probable cause cannot arise in such a case as this, 
 but only in a case where the justice has jurisdiction. Whittier v. 
 Diblee, 15 N. B. E, 243. 
 
 In an action for malicious prosecution, it appeared that the 
 defendant was a justice of the peace and as such acquired his 
 knowledge of the circumstances on which he preferred the charge 
 against the plaintiff. Held, clearly no ground for requiring that 
 express malice should be proved against him. Orr v. Spooner, 19 
 U. C. E. 601. 
 
 It has been held that the first and second sections of 11 & 12 
 Vic., c. 44, which our statutes have followed, should be read to- 
 gether, and that section 2 only applies to those cases where the 
 particular proceeding in respect of which an action is brought 
 against a justice is in itself an excess of jurisdiction. For in- 
 stance, when a justice, to an otherwise good conviction, added an 
 illegal alternative that, in default of payment of the penalty and 
 costs 00* sufficient distress, the convicted person should be put in 
 stocks, it was held that, if this alternative had been enforced, 
 the justice would not have been entitled to the benefit of section 1. 
 Barton v. BricTcn&ll, 13 Q. B. 393. 
 
 So where justices convicted a man, under 6 & 7 Vic., c. 68, for 
 illegally performing stage plays, the conviction contained no ad- 
 judication of costs, but the warrant of distress recited the convic- 
 tion as if it did, and the defendant, before the issue of the warrant 
 of distress, was detained to enforce payment of the penalty, which 
 afterwards was levied, together with the costs, under the warrant, 
 held that, whether they had power to adjudicate costs or not, they
 
 94 ACTIONS AGAINST JUSTICES. 
 
 had not done so, and that the imprisonment and distress were an 
 " excess of jurisdiction " within section 2. Leary v. Patrick, 15 
 Q. B. 266, 19 L. J. M. C. 211. 
 
 The protection of a magistrate depends not on general juris- 
 diction over the subject matter, but over the particular matter or 
 individual. Therefore, where a justice issued his warrant to ap- 
 prehend a party to answer a charge of assault upon a deposition 
 taken in the absence of the justice, he not at any time seeing, 
 examining or hearing the deponent, he was held liable to an action 
 for trespass, although he otherwise had jurisdiction over the 
 charge. Caudle v. Seymour, 1 Q. B. 889. 
 
 A magistrate has no right to detain a person, who is well 
 known, to answer a charge of misdemeanour, verbally intimated 
 to the magistrate, but without a regular information. R. v. Birnie, 
 1 Mood. & E. 160, 5 C. & P. 206. 
 
 A commitment for part of the sum adjudged by the conviction 
 to be paid is not authorized by the Summary Conviction Act and 
 is illegal. The plaintiff was convicted under the Canada Temper- 
 ance Act, and adjudged to pay a fine and costs, to be levied by 
 distress, if not paid forthwith, and, in default of sufficient distress, 
 to be imprisoned. He paid the costs, but not the fine, and a dis- 
 tress warrant was issued against him." Nothing being made under 
 the distress, a warrant of commitment was issued, and he was 
 imprisoned. Held, that the commitment was bad. Sinden v. 
 Brown, 17 A. R, 173. See Eastman v. Reid, 6 U. C. R, 611. 
 
 Where a justice of the peace has jurisdiction to try a complaint 
 and there has been a regular information, but the conviction and 
 warrant of commitment are defective, he is not liable in trespass 
 for anything done prior to the conviction. Sewell v. Olive, 4 
 Allan, N. B. 394. 
 
 The defendant, as a justice, issued a warrant against the plain- 
 tiff upon a complaint for detaining some clothes. The plaintiff, 
 upon being told by the constable that he had a warrant, went alone 
 to the defendant, the defendant heard the evidence in presence 
 of plaintiff, and plaintiff was allowed to go away without giving 
 bail and returned the next day, when defendant discharged him. 
 Held, that no imprisonment was proved, and that the defendant, 
 having jurisdiction over the subject-matter of the complaint, was 
 not liable in trespass, even if the information was insufficient in 
 form. Thorpe v. Oliver, 20 U. C. R. 264. 
 
 Detention pending adjournment. Held, that defendant will 
 not be held liable for the plaintiff's sufferings caused hy the con-
 
 ACTIONS AGAINST JUSTICES. 95 
 
 dition of the lock-up, for he had remanded him only, giving no 
 express directions to put him there. The defendant had offered 
 to take bail, but plaintiff refused to give it, saying, " Send me to 
 gaol," and the defendant ordered the constable to take him into 
 custody. The constable thereupon put him in the lock-up, which 
 was cold and uncomfortable. Crawford v. Beattie, 39 U. 0. B. 13. 
 
 The falsity of a charge cannot give cause of action against a 
 magistrate who acts upon the assumption and belief of its truth, 
 and an allegation that he acted without any just cause upon a false 
 charge, but not charging malice, means only that the charge being 
 false, he had no just cause. Sprung v. Anderson, 23 C. P. 152. 
 
 Illegal arrest, excessive punishment, see Mclver v. McGillivray, 
 24 C. L. T. Occ. N. 142, 237. 
 
 Plaintiff was arrested upon a warrant issued by defendant, a 
 justice, and brought before him. Defendant examined the plain- 
 tiff, but took no evidence, and said he could not bail plaintiff, and 
 committed him to gaol on a warrant reciting he was charged 
 before him with stealing. The plaintiff did not ask to be heard 
 or to give evidence. Held, defendant liable in trespass. Connors 
 v. Darling, 23 U. C. E. 541, followed in Piggott v. French, 21 0. 
 L. E. 87. 
 
 A magistrate, having entertained a case under the Masters and 
 Servants Act, E, S. 0., c. 157, s. 12, and convicted the plaintiff, 
 notwithstanding more than a month had elapsed since the ter- 
 mination of the engagement, and, although he was told that he 
 had no jurisdiction and was shown a professional opinion to that 
 effect and referred to the statutes. Held, that the jury were war- 
 ranted in finding that he did not bona fide believe that he was 
 acting in the execution of his duty in a matter within his juris- 
 diction, and that he was, therefore, not entitled to notice of 
 action. Cummins v. Moore, 37 U. C. E. 130. See also Cross v. 
 Wilcox, 39 U. C. E. 187; Anderson v. Wilson, 25 0. E. 91; Jones 
 v. Grace, 17 0. E. 681; Hallett v. Wilmot, 40 U. C. E. 263; 
 McKinley v. Munsie, 15 C. P. 230; Stewart v. Hazen, 2 Allan N". 
 B. E. 254; Kalar v. Cornwall, 8 TJ. C. E. 168; Graham v. Mc- 
 Arthur, 25 U. C. E. 478; Dickson v. Crabb, 24 TJ. G. E. 494; 
 Mojfai v. Barnard, 24 U. C. E. 498. 
 
 COMPELLING PERFORMANCE OF DUTIES. 
 
 The fifth section of the Act (E, S. 0. 1914, c. 89) provides 
 for an application to the Court for an order nisi requiring a 
 justice to do any act relating to the duties of his office.
 
 96 COMPELLING JUSTICES TO PERFORM DUTIES. 
 
 If a justice refuses to do any act which, as a justice, he ougut 
 to do, a Judge of the Supreme Court or a Judge of the proper 
 County or District Court may, under this section, order him to 
 do it. 
 
 When magistrates have made legal convictions, regular in 
 form, they have no discretion to refuse to issue warrants to en- 
 force the penalties on the ground of some supposed hardship in 
 the number of the convictions or the amount of the costs : R. v. 
 Hartley, 31 L. J. M. C. 232. See also E. v. Deverell, 3 E. & B. 
 372, and R. v. JJ. Oxfordshire, 18 L. J. M. "C. 222. 
 
 The following are cases in which the Court refused to order 
 the justices to do the acts required of them. Delaney v. McNabb, 
 21 C. P. 563; R. v. Bristol, 18 Jur. 426 n; Re Olee, 21 L. J. 
 M. C. 112. 
 
 The Court will inquire into the validity of the order before 
 compelling the justice to enforce it by distress and will refuse to 
 do so if the order appears to be invalid. R. v. Collins, 21 L. J. 
 M. C. 73 ; R. v. Browne, 13 Q. B. 653. 
 
 When a magistrate has bona fide exercised his discretion in re- 
 fusing to do any act relating to the duties of his office, such as to 
 grant a summons for an indictable offence, the Court has no juris- 
 diction to compel the magistrate to review his decision, or to order 
 him to exercise his discretion in any particular way. The statute 
 only extends to cases where the magistrate does not consider the 
 propriety of doing, or not doing, the act in question. Ex parte 
 Lewis, 16 Cox C. C. 449. 
 
 But, when the magistrate, having taken an information for a 
 criminal offence, refuses to issue either a summons or a warrant 
 without giving any reason, an order nisi should 'be issued against 
 him under the Act. R. v. Graham, 17 C. C. C. 264. 
 
 There must be a refusal to adjudicate before the Act can be in- 
 voked. R. v. Paynter, 26 L. J. M. C. 102, 7 E. & B. 328. 
 
 Where the magistrate has heard and adjudicated, the section 
 does not apply. R. v. Dayman, 7 E. & B. 672. 
 
 See also Re Glee, supra, R. v. Blanshard, 18 L. J. M. C. 110; 
 R. v. Ingliam, 17 Q. B. 884, as to costs. 
 
 By sec. 9 of the Act (E. S. 0. 1914, ch. 89), if any action is 
 brought, where by this Act it is enacted no such action shall be 
 brought under the particular circumstances, a Judge of the Court 
 in which the action is pending may set aside the proceedings in the 
 action.
 
 ACTIONS AGAINST JUSTICES NOTICE OF ACTION. 97 
 
 In an action against a justice of the peace for false imprison- 
 ment, and for acting in his office maliciously and without reasonable 
 and probable cause, an application was made before statement of 
 claim to set aside the proceedings under s. 12, K. S. 0. 1887, c. 73, 
 on the ground that the conviction of the plaintiff made by the de- 
 fendant had not been quashed. It appeared, however, that plain- 
 tiff wa.j arrested and imprisoned under a warrant issued by the 
 defendant which had no conviction to support it, and the Court 
 held that the case was not within the section. Per ROBEETSON, J. 
 The plaintiff had a complete cause of action without setting aside 
 the conviction. Per MEREDITH, J. The application was prema- 
 ture. Webb v. Spears, 15 P. E, 232. 
 
 By s. 13, no action shall be brought against any justice of the 
 peace for anything done by him in the execution of his office unless 
 the same is commenced within six months next after the act com- 
 plained of was committed. 
 
 As to whether action commenced in time, see Hardy v. Ryle, 9 
 B. & C. 603 ; Massey v. Johnson, 12 East. 6.7 ; Weston v. Fournier, 
 14 East 491. See also s. 1143 of the Code. 
 
 There may be a series of acts connected together, and yet each 
 giving rise to a cause of action. Collins v. Rose, 5 M. & W. 194. 
 
 In an action against a justice for illegal distress, the limited 
 period begins to run from the entry on the plaintiff's premises and 
 not from the date of the conviction. Polley v. Fordham, [1904] 
 2 K. B. 345, 90 L. T. 755. 
 
 NOTICE OF ACTION. 
 
 By the Public Authorities Protection Act, E. S. 0. 1914, ch. 89. 
 all enactments requiring notice to be given to magistrates and 
 justices of the peace in Ontario of actions against them, in respect 
 of matters under the Provincial statutes, are repealed, but the fol- 
 lowing cases will be useful in the Provinces in which such enact- 
 ments are still in force, also in interpreting section 1144 of the 
 Criminal Code which applies to all actions for things purporting 
 to be done under any Dominion Act relating to criminal law 
 
 By sec. 14, E. S. 0. 1897, ch. 88, the justice was entitled to one 
 calendar month's notice of the action. The notice shall be in 
 writing and served upon the justice. This means a clear month's 
 notice exclusive of the first and last days or the day of giving notice 
 
 C.C.P. 7
 
 98 NOTICE OF ACTION. 
 
 and suing out the writ. Dempsey v. Dougherty, 7 U. C. R. 313 ; 
 Young v. Higgon, 6 M. & W. 49. 
 
 Where the notice was served on 28th March, and the writ issued 
 out on the 29th April, this was held sufficient as being at least one 
 month's notice. Mclntosh v. Vansteenburg, 8 U. C. R. 248, and 
 see Hatch v. Taylor, 14 N. B. R. 39. 
 
 Whenever the act complained of is one which had been done by 
 a magistrate intending to act as such, however mistaken upon a 
 subject matter within his jurisdiction, he is entitled to a notice 
 under the Act. Weller v. ToTce, 9 East. 3(54. 
 
 And, although the subject matter of complaint might arise out 
 of the local jurisdiction of the justice, yet, if he had authority over 
 the subject matter, he was still entitled to notice. Prestidge v. 
 Woodman, 1 B. & C. 13. 
 
 A justice of the peace is entitled to notice of action whenever 
 the act which is complained of is done by him in the honest belief 
 that he was acting in the execution of his duty as a magistrate in 
 the premises. Sprung v. Anderson, 23 C. P. at p. 159. See also 
 Friel v. Ferguson, 15 C. P. 583, and Scott v. Reburn, 25 0. R. 450, 
 and cases there cited. 
 
 The test is whether or not the defendant bona fide believed in 
 the existence of facts which, if they existed, would give him juris- 
 diction. Mott v. Milne, 31 N. S. R. 372; Chamberlain v. King, 
 L. R. 6 C. P. 474; Griffith v. Taylor, 2 C. P. D. 194. 
 
 A magistrate is entitled to notice although he has acted without 
 jurisdiction. When it was clear that defendant had acted as :i 
 justice of the peace and there was no evidence of malice, except the 
 want of jurisdiction, it was held not necessary to entitle him to 
 notice to leave it to the jury to say whether he had acted in good 
 faith. Bross v. Huber, 18 IT. C. R. 282. 
 
 Magistrate acting without jurisdiction and not bona fide: see 
 Campbell v. Walsh, 18 C. C. C. 304. 
 
 Where a magistrate acts in direct contravention of the statute 
 in issuing a warrant without the proper information, or without 
 even a verbal charge having been laid against the plaintiff, and 
 there is no evidence of bona fides on his part, he is not entitle'd to 
 notice of action. Friel v. Ferguson, 15 C. P. 584. 
 
 In McGuiness v. Dafoe, (1896) 3 C. C. C. 139, it was held that 
 a justice of the peace who illegally issues a warrant without having 
 received a sworn information in respect of the charge is liable in 
 trespass for the arrest made thereunder, and he cannot justify the
 
 NOTICE OF ACTION AGAINST JUSTICES. 99 
 
 commanding of the constable to make the arrest by shewing that he, 
 the justice, had a reasonable suspicion that an offence had been 
 committed. A question was raised as to the notice of action. The 
 defendant contended that the notice served was defective. The 
 plaintiff relied upon it as sufficient, and in the alternative set up 
 that no notice was necessary. Burton, J.A., who delivered the 
 judgment of the Court of Appeal, says, at page 147 : " It was 
 simply a notice of action for trespass and nothing more. As we 
 hold the notice to be sufficient, it is perhaps hardly necessary to 
 determine whether, under the circumstances, notice was necessary. 
 I certainly do not wish to intimate any opinion that it was not." 
 " The principle on which we decided Sinden v. Brown, 17 A. E. 
 173, fully supports the defendant's right to notice of action/' See 
 also the cases cited by the learned Judge on pages 148 and 149 as to 
 notice. 
 
 As to the form of the notice, see Upper v. McFarland, 5 U. C. 
 B. 101 ; Oittespie v. Wright, 14 U. C. E. 52 ; McGuiness v. Dafoe, 23 
 A. E. 704, 27 0. E. 117; Bond v. Oonmee, 16 A. E. 398, 15 0. E. 
 716. 
 
 The notice must state the cause of action explicitly. McGrilvery 
 v. Gault, 17 N. B. E. 641. 
 
 The notice must state the time of arrest and imprisonment com- 
 plained of. Sprung v. Anderson, 23 C. P. 152. See Scott v. 
 Return, 25 0. E. 450 ; ParTcyn v. Staples, 19 C. P. 240 ; Oliphant 
 v. Leslie, 24 U. C. E. 398. 
 
 The notice must contain a statement of the place where the 
 trespass or injury was committed. Kemble v. McGarry, 6 0. S. 
 570. ; Madden v. Shewer, 2 U. C. E, 115. 
 
 If the notice wrongly stated the name of the township in which 
 the arrest took place, it is insufficient. Aldricli v. Humphrey, 29 
 0. E. 427. 
 
 The place where the plaintiff was imprisoned must be correctly 
 stated. CronJchite v. Sommermlle, 3 U. C. E. 129. 
 
 -The notice must shew that the defendant acted maliciously. 
 Scott v. Eeburn, 25 0. E. 450. 
 
 Unless his acts were without jurisdiction. Hatch v. Taylor, 14 
 N. B. E. 39. 
 
 The particular court in which it is proposed to bring the action 
 must be specified. Bross v. Huber, 18 U. C. E. 282; Neville v. 
 Ross, 22 C. P. 487. 
 
 Where the notice stated that the action would be brought in the 
 Queen's Bench, but the writ was, by mistake, issued out of the
 
 100 NOTICE OF ACTION AGAINST JUSTICES. 
 
 Common Pleas, it was held that the notice could not be amended 
 under the A. J. Act, 1873. McCrum v. Foley, 6 P. H. 164. 
 
 No objection that plaintiff declares by a different attorney from 
 the one by whom the notice was given and process issued. McKenzie 
 v. Mewlurn, 6 0. S. 486. 
 
 Where a defendant, after accepting service of an informal 
 notice, added, " and agree to accept the same as sufficient notice of 
 action to me under the statute," it was held that he could not 
 afterwards rely on a defect in the notice. Donaldson v. Haley, 13 
 C. P. 87. 
 
 4 ^ 
 
 No particular addition or description of the magistrate need >e 
 given in the notice. Haacke v. Adamson, 14 C. P. 201. 
 
 The notice must declare the place of residence of the attorney. 
 Bates v. Walsh, 6 U. C. B. 498 ; Armstrong v. Bowes, 12 C. P. 539 ; 
 In Gillespie v. Wright, 14 TJ. C. B. 52, however, a similar objection 
 was overruled. 
 
 Where the name and place of residence of the plaintiff's attorney 
 were not endorsed on the notice, but added inside at the foot of it, 
 this was held sufficient. Bross v. Huber, 15 TJ. C. E. 625 ; and see 
 also McGilvery v. Qault, 17 N. B. B. 641 ; Osborn v. Gough, 3 B. 
 & P. 551. 
 
 In Taylor v. Fenwick, 7 T. E. 635, it was held that the place of 
 residence of the attorney was not -sufficiently stated by his conclud- 
 ing the notice thus : " Given under my hand at Durham." 
 
 As to statement of plaintiff's place of abode in the notice. 
 Moran v. Palmer, 13 C. P. 528 ; Jones v. Grace, 17 0. E. 681 ; Nettl 
 v. McMillan, 25 U. C. B. 485; McDonald v. Stuckey, 31 U. C. E. 
 577. 
 
 The notice may be served before the conviction, order or war- 
 rant complained of has been quashed under the fourth section of 
 the Act. Haylock v. Sparke, 22 L. J. M. C. 67. 
 
 A justice acting without qualification is not entitled to a 
 notice of action. Crabb v. Longworth, 4 C. P. 283. 
 
 Neither is notice of action necessary in an action for not re- 
 turning a conviction. Grant v. McFadden, 11 C. P. 122. 
 
 The tendency of Courts has been rather to extend than restrict 
 the protection afforded to peace officers professing to act in the 
 execution of the duty by notices of action. Per BARKER, J.. in 
 White v. Hamm, (1903) 36 X. B. E. 237. 
 
 In England, by the Public Authorities Protection Act (189:1). 
 all enactments that notice of action be given are repealed : but an
 
 TENDER OF AMENDS COSTS OF ACTION. 101 
 
 opportunity of tendering amends must still be given. Paley, 8th 
 ed. 504. 
 
 TENDER OF AMENDS. 
 
 Sub-section (3) of section 13 of B. S. 0. 1914 ch. 89, provides: 
 (3) If, in the opinion of the Court, the plaintiff has not given 
 the defendant a sufficient opportunity of tendering amends before 
 the commencement of the proceeding, the Court may award to the 
 defendant costs to be taxed as between solicitor and client. 
 
 Tender without payment of the money into Court will entitle 
 the defendant to a verdict. Gidney v. Dibbhe, 15 1ST. B. E. 388. 
 
 The New Brunswick Act (1903), ch. 63, provides that where 
 the plaintiff shall be entitled to recover in any action against a 
 justice he shall not have a verdict for any damages beyond two 
 cents or any costs of suit, if it shall be proved that he was guilty 
 of the offence of which he was convicted, etc. In an action for 
 false imprisonment brought against a magistrate who, without 
 Jurisdiction, had committed the plaintiff to prison for making 
 default in payment of a fine imposed upon him for selling liquor 
 without a license, evidence was offered and admitted in proof of 
 the plaintiff's innocence of the charge. Held, that the evidence 
 was properly received, and that the plaintiff, in order to prove his 
 innocence, was not confined to such evidence as had been given 
 before the magistrate in the trial of the information. Labelle v. 
 McMillan, 34 N. B. E. 488. See also Smith v. Simmons, 15 K B. 
 E. 203; McGilvery v. Gault, 19 N. B. E. 217. 
 
 See also section 10 of E. S. 0. 1914, ch. 89, which provides 
 similar protection for magistrates and justices in Ontario. 
 
 COSTS OF ACTION. 
 
 Section 13 of E. S. 0. 1914, ch. 89, provides that, where in any 
 such action costs are awarded to the defendant, the Court may direct 
 that they be taxed as between solicitor and client. See Arscott v. 
 Lilley, 14 A. E. 283. 
 
 Held, that plaintiff should not have costs on the Superior Court 
 scale when his damages are assessed for $25, the recovery being 
 within the jurisdiction of an inferior Court. Ireland V. Pitcher, 
 11 P. E. 403. 
 
 SECURITY FOR COSTS. 
 
 Section 16 of E. S. 0. 1914, ch. 89, provides for security for 
 costs in actions against justices. See page 13.
 
 102 SECURITY FOR COSTS CRIMINAL INFORMATION. 
 
 Held, that the Court should be less exacting as to the char- 
 ' acter of the property where the person is a bona fide resident than 
 in the ordinary case of a stranger who seeks to justify upon 
 property within the jurisdiction; the test is, is it such property 
 as would be forthcoming and available in execution? And, when 
 the plaintiff had property, partly real and partly personal, to the 
 value of $800 over and above his debts, incumbrances and exemp- 
 tions, security for costs was not ordered. Bready v. Robertson, 14 
 P. E. 7. See also Parkes v. Baker, 17 P. E. 345 ; Thompson v. 
 Williamson, 16 P. E, 368 ; Southwick v. Hare, 15 P. E. 222, and 
 Ashcroft v. Tyson, 17 P. E. 42. 
 
 CRIMINAL INFORMATION. 
 
 If the misconduct of magistrates, besides being productive of 
 private injury, be such as to call for punishment upon public 
 grounds, as where it proceeds not from error but from private 
 interest, or resentment, an information will be directed by the 
 Court to be filed against the offender upon a proper application, 
 supported by affidavits. But an information is never granted for 
 an irregularity arising merely from ignorance or mistake. R. v. 
 Cozens, 2 Doug. 426 ; R, v. Fielding, 2 Burr. 720 ; R. v. Young & 
 Pitts, 1 Burr. 556. 
 
 It will not be granted on behalf of a magistrate for unwritten 
 words imputing to him malversation in his office, if the words 
 were not spoken at the time when he was acting and did not tend 
 to a breach of the peace. Ex parte Duke of Marlborough, 5 Q. B. 
 955, and see R. v. Burn, 7 A. & E. 190. 
 
 A magistrate is entitled to six days' notice of a motion for a 
 criminal information against him for violation of his duty, The 
 motion must be made in sufficient time to enable the party accused 
 to answer the same term. R, v. Heustis, 2 N. S. E. 101. See R. 
 v. Heming, 5 B. & Ad. 666, and Ex parte Fentiman, 2 A. & E. 127. 
 
 The misconduct must have arisen in connection with his public 
 duties. R. v. Arrowsmith, 2 Dowl. & Dowl. 704. 
 
 And where a criminal information is applied for against a 
 magistrate for improperly convicting a person of an offence, the 
 Court will not entertain the motion however bad the conduct of the 
 magistrate may appear, unless the party applying make oath that 
 he is not really guilty of the offence of which he was convicted. 
 R. v. Webster, 3 T. E. 388. 
 
 In all cases of an application for a criminal information against 
 a magistrate for anything done by him in the exercise of the duties
 
 RETURN OF CONVICTIONS. 103 
 
 of his office, the question has always been, not whether the act done 
 might, upon a full and mature investigation, be found strictly 
 right, but from what motive it had proceeded, whether from dis- 
 honest, oppressive or corrupt motive, or from mistake, or error ; in 
 the former case alone they have become the objects of punishment. 
 R. v. Borron, 3 B. & Aid. 432-4. See also Bustard v. Schofield, 4 
 0. S. 11; In re Recorder of Toronto, 23 U. C. K. 376; R. v. 
 Whately, 4 M. & Ry. 431 ; R. v. Badger, 4 Q. B. 468. 
 
 Evidence of a corrupt or improper motive must be shewn in 
 order to obtain leave to exhibit a criminal information against a 
 justice of the peace for acting corruptly or improperly. R. v. 
 Currie, (1906) 11 C. C. C. 343. See Paley, 8th ed., pp. 45, and 
 511 to 516, and see also Re McMicJcen, 20 C. C. C. 334. 
 
 EETURN OF CONVICTIONS. 
 
 In addition to the provisions of the provincial statutes requir- 
 ing justices to make returns of convictions and orders, there are 
 also the provisions under Part XXIII. of the Code as follows : 
 
 PART XXIII. 
 
 Returns. 
 
 1133. Every justice shall, quarterly, on or before the second Tues- 
 day in each of the months of March, June, ^September and December in 
 each year, make to the clerk of the peace or other proper officer of the 
 Court having jurisdiction in appeal, as herein provided, a return in 
 writing, under his hand, of all convictions made by him, and of the re- 
 ceipt and application by him of the moneys received from the defendants. 
 
 2. Such return shall include all convictions and other matters not 
 included in some previous return, and shall be in form 75. 
 
 3. If two or more justices are present, and join in the conviction, 
 they shall make a joint return. 
 
 4. Every justice, to whom any such moneys are afterwards paid, shall 
 make a return of the receipt and application thereof, to the Court having 
 jurisdiction in appeal as hereinbefore provided, which shall be filed by 
 the clerk of the peace or the proper officer of such Court with the records 
 of his office. 
 
 5. In the province of Prince Edward Island such return shall be 
 made, to the clerk of the Court of Assize of the county in which the 
 convictions are made, and on or before the fourteenth day next before 
 the sitting of the said Court next after such convictions are so made. 
 
 6. Every such return shall be made in the district of Nipissing, in the 
 province of Ontario, to the clerk of the peace for the county of Renfrew, 
 in the said province. 
 
 1134. Every justice, before whom any conviction takes place, or who 
 receives any such moneys* who neglects or refuses to make such return 
 thereof, or wilfully makes a false, partial or incorrect return, or wilfully 
 receives a larger amount of fees than by law he is authorized to receive.
 
 104 RETURN OF CONVICTIONS BY JUSTICES. 
 
 and every justice who upon or in connection with, or under colour or 
 pretence of, any information, complaint or judicial proceeding or inquiry 
 had or taken before him, wilfully exacts, receives, appropriates or retains 
 any fees, moneys or payments which he is not by law authorized to 
 receive or to be paid, shall incur a penalty of eighty dollars, together 
 with costs of suit, in the discretion of the Court, which may be recovered 
 by any person who sues for the same by action of debt or information in 
 any Court of record in the province in which such return ought to have 
 been or is made. , 
 
 2. One moiety of such penalty shall belong to the person suing, and 
 the other moiety to His Majesty for the public uses of Canada. 
 
 3. Nothing in this section shall have the effect of preventing any 
 person aggreived from prosecuting, by indictment, any justice, for any 
 offence, the commission of which would have subjected him to indictment 
 immediately before the first day of July, one thousand eight hundred and 
 ninety-three. 
 
 1135. When any certificate is granted under section one hundred and 
 eighteen of this Act, the justice granting it shall forthwith make a return 
 thereof to the proper officer in the county, district or place in which such 
 certificate has been granted for receiving returns under this Part. 
 
 2. On default of making such return within ninety days after a cer- 
 tificate is granted, the justice shall be liable, on summary conviction, to 
 a penalty of not more than ten dollars. 
 
 1136. Every commissioner under Part III. of this Act shall make 
 a monthly return to the Secretary of State of all weapons delivered to 
 him, and by him detained under Part III. 
 
 1137. The clerk of the peace of the district or county to whom 
 returns under this Part are made, or the proper officer, other than the 
 clerk of the peace, to whom such returns are made, shall, within seven 
 days after the adjournment of the then next ensuing general or quarter 
 sessions, or of the term or sitting of such other Court having jurisdiction 
 in appeal as aforesaid, cause the said returns to be posted up in the 
 courthouse of the district or county, and also in a conspicuous place in 
 the office of such clerk of the peace, or other proper officer, for public in- 
 spection, and the same shall continue to be so posted up and exhibited 
 until the end of the next ensuing general or quarter sessions of the peace, 
 or for the term or sitting of such other Court as aforesaid. 
 
 2. For every schedule so made and exhibited by such clerk or officer, 
 he shall be allowed such fee as is fixed by competent authority. 
 
 3. Such clerk of the peace or other officer of each district or county, 
 within twenty days after the end of each general or quarter sessions of 
 the peace, or the sitting of such Court as aforesaid, shall transmit to 
 the Minister of Finance a true copy of all such returns made within his 
 district or county. 
 
 1138. No return purporting to be made by any justice under this 
 Act shall be vitiated by the fact of its including, by mistake, any convic- 
 tions or orders had or made before him in any matter over which any 
 provincial legislature has exclusive jurisdiction, or with respect to which 
 he acted under the authority of any provincial law. 
 
 1139. Every clerk of the peace or other proper officer shall transmit 
 to the Minister of Agriculture a quarterly return of the names of offen- 
 ders, the offences and punishments mentioned in convictions transmitted 
 to him under Part XVII. of this Act. 
 
 It will be noticed that to neglect to return moneys received, or 
 to make false returns, or to wilfully take, exact, receive, appropriate 
 and retain any fees or moneys not authorized, subjects the justice 
 in default to a penalty of $80. The only noticeable difference
 
 RETURN OF CONVICTIONS BY JUSTICES. 105 
 
 between the provisions of the Code and those of the Provincial 
 Statutes is that the Code (1134 (2)) provides that one moiety of 
 the penalty shall belong to the person suing, and the other to His 
 Majesty, for the public uses of Canada, whereas in the Provincial 
 Statutes one moiety goes to the party suing and the other to His 
 Majesty in right of the province. 
 
 The provisions of sub-section 3 of section 1134 are important 
 to be read in connection with what has gone before on the subject 
 of criminal information. 
 
 If the conviction as returned is defective in form, the justice 
 may make out another according to the evidence adduced before 
 him and return it to the sessions. R, v. Bennett, 3 0. R. 45. 
 
 The fact of the conviction being appealed from does not relieve 
 the justice from the penalty on non-return of the conviction under 
 R. S. 0. 1897, ch. 93. Murphy q. t. v. Harvey, 9 C. P. 528. See 
 also Kelly q. t. v. Cowan, 18 TJ. C. R. 104. 
 
 As to what time will be allowed to a magistrate for making a 
 return which the statute requires to be immediate, see McLellan 
 q. t. v. Mclntyre, 12 C. P. 546 ; McLellan q. t. v. Brown, 12 C. P. 
 542, and Longeway v. Avison, 8 0. R. 357. 
 
 The question as to the conviction being, right or wrong is 
 immaterial; and, when a magistrate has actually convicted and 
 imposed a fine, it is no defence that he had no jurisdiction to con- 
 vict. Bagley q. t. v. Curtis, 15 C. P. 366; O'Reilly q. t. v. Allan, 
 11 TJ. C. R. 411. 
 
 The neglect of the justice to return the conviction made by him 
 as prescribed, renders him liable under the statutes to a separate 
 penalty for each conviction not returned, and not merely to one 
 penalty for not making a general return of such convictions. 
 Darragh q. t. v. Paterson, 25 C. P. 529. See also the following 
 qui tarn decisions : Keenahan v. Egleson, 22 TJ. C. R. 626 ; Ollard 
 v. Owens, 29 TJ. C. R. 515 ; Ball v. Fraser, 18 TJ. C. R. 100 ; Atwood 
 v. Rosser, 30 C. P. 628 ; Stinson v. Guess, 1 C. L. J. 19 ; Drake V. 
 Preston, 34 TJ. C. R, 257; Metcalf v. Reeve, 9 TJ. C. R. 263. 
 
 Police magistrates in Ontario do not need to make the quarterly 
 returns required by R. S. 0. 1914, ch. 87, sec. 20, to be made by 
 Justices of the Peace. See section 27 and Hunt v. Shaver, 22 A. 
 R. 202 ; R. v. Graves, 21 0. L. R. 330. 
 
 As to actions against magistrates for penalties for wilfully 
 exacting unauthorized fees, see AiJcins v. Simpson, IS C. C. C. 99, 
 affirmed on appeal, 19 C. C. C. 325.
 
 106 JUSTICES EXACTING UNAUTHORIZED FEES. 
 
 In McGillivray v. Muir, (1903) 7 C. C. C. 360, it was held 
 by FERGUSON and MACMAHON, JJ., sitting as a Divisional Court, 
 that the provisions of section 902 of the Code (now section 1134) 
 applied only to fees received under the summary convictions part 
 of the Code. And that a wilful receiving of unauthorized fees 
 means receiving them intentionally with a knowledge that there is 
 no legal right to collect them. MACMAHON, J., at pp. 363-364, 
 says: "The ground principally relied upon in support of the 
 appeal was that the Act only applies to cases where a justice acting 
 under the Summary Convictions Act wilfully received a larger 
 amount of fees than by the tariff he was authorized to receive. 
 And as the fee he charged and received was in connection with 
 an indictable offence for which no fee is authorized either by the 
 tariff of the Province, or of the Dominion, no action could be main- 
 tained against him for the penalty." ..." Our Acts already 
 referred to authorize the taking by the justices of the fees men- 
 tioned therein solely in cases where the magistrate has jurisdiction 
 under the Acts relating to summary convictions, and it is for an 
 infraction of either of these Acts by wilfully taking a larger fee 
 in such cases that he may be penalized. There is no Act of Parlia- 
 ment authorizing the taking of a fee on a charge made for an 
 indictable offence which was claimed and taken by the defendants 
 in this case, and- he cannot be sued for a penalty for none is 
 attached. That is the effect of Bowman v. Blyih, 7 E. & B. 26. 
 The defendant might have been indicted for extortion under sec- 
 tion 905 (now sub-sec. 3 of section 1134) of the Criminal Code. 
 See R. v. Tisdale, (1860) 20 IT. C. B. 272." 
 
 Section 157 of the Code is as follows: 
 
 157. Every one is guilty of an indictable offence and liable to four- 
 teen years' imprisonment who, 
 
 (a) being a justice, peace officer, or public officer, employed in any 
 capacity for the prosecution or detection or punishment of offenders, 
 corruptly accepts or obtains, or agrees to accept or attempts to 
 obtain for himself, or for any other person, any money or valuable 
 consideration, office, place or employment, with the intent to in- 
 terfere corruptly with the due administration of justice, or to pro- 
 cure or facilitate the commission of any crime, or to protect from 
 detection or punishment any person having committed or intending 
 to commit any crime ; or, 
 
 (6) corruptly gives or offers to any officer aforesaid any such bribe 
 as aforesaid with any such intent. 
 
 By section 2 of the Code, sub-sections 18, 26 and 29, a " jus- 
 tice," a " peace officer " and a " public officer " are defined as 
 follows : 
 
 (18) 'justice' means a justice of the peace, and includes two or more 
 justices, if two or more justices act or have jurisdiction, and also
 
 MANDAMUS AND PROHIBITION. 107 
 
 a police magistrate, a stipendiary magistrate and any person having 
 the power or authority of -two or more justices of the peace ; 
 
 (26) ' peace officer ' includes a mayor, warden, reeve, sheriff, deputy 
 sheriff, sheriffs officer, and justice of the peace, and also the 
 warden, deputy warden, instructor, keeper, guard, or any other of- 
 ficer or permanent employee of a penitentiary and the gaoler or 
 keeper of any prison, and any police officer, police constable, bailiff, 
 constable or other person employed for the preservation and main- 
 tenance of the public peace, or for the service or execution of civil 
 process ; 
 
 (29) 'public officer' includes any inland revenue or customs officer, 
 officer of the army, navy, marine, militia, Royal Northwest Mounted 
 Police, or other officer engaged in enforcing the laws relating to 
 the revenue, customs, trade or navigation of Canada; 
 
 Where application is made to a magistrate to take and receive 
 an information for an indictable offence which he cannot deal with 
 summarily, he cannot demand any fees: ROBERTSON, J., at p. 321, 
 in R. v. Meehan (No. 2), (1902) 5 C. C. C. 312. 
 
 As to the exacting of unauthorized fees by justices, see Aikins 
 v. Simpson, 18 C. C. C. 99, 19 C. C. C. 325. 
 
 MANDAMUS AND PROHIBITION. 
 
 There are two other remedies which may be invoked against 
 justices to compel them either to do some act relating to the duties 
 of their office, or to refrain from doing some act in excess of their 
 jurisdiction. The first is by mandamus and the second by prohi- 
 bition. 
 
 Mandamus. We have seen that by E. S. 0. 1914, ch. 89, sec. 5, 
 an application may be made to a Judge to compel a justice of the 
 peace to do any act relating to the duties of his office which he has 
 refused to do. In modern practice this mode of procedure is 
 adopted in preference to applying for a mandamus. Re Delaney v. 
 NcNabl, 21 C. P. 563. 
 
 In Ontario and Manitoba writs of mandamus and prohibition 
 have been abolished, and orders of the Court having the same 
 effeot are substituted therefor. For the practice relating to 
 mandamus and prohibition, see Holmested & Langton, 3rd ed., 
 pp. 1293 and 1307. 
 
 Mandamus is a command issuing in the King's name out of 
 the Court of King's Bench or High Court directed to any person, 
 corporation, or Court of inferior jurisdiction, requiring them to do 
 some particular thing therein specified, which appertains to their 
 office and duty. It is a high prerogative writ of a most exten- 
 sively remedial nature. Being a prerogative writ, it runs into all 
 privileged places. R. v. Commissioners of Excise, 2 T. E. 385.
 
 108 MANDAMUS. 
 
 It is always granted where there is a specific legal right, but 
 no other specific legal remedy, or where it is doubtful whether 
 there is. R. v. Windham, 1 Cowp. 377; R. v. St. Katherine Dock 
 Company, 4 B. & A. 360; R. v. Jeyes, 3 A. & E. 416; R. v. 
 Nottingham, 6 A. & E. 355. And not where a party lias a specific 
 legal remedy: R. v. Bishop of Chester, 1 T. B. 396; or a remedy 
 in equity : R. v. Marquis of Stafford, 3 T. E. 646. 
 
 But the Court will not grant a mandamus commanding justices 
 to do that which may render them liable to an action of which the 
 event may be doubtful. R. v. Dayrell, 1 B. & C. 485 ; E. v. Bro- 
 derip, 5 B. & C. 239; R. v. Hughes, 3 A. & E. 425. 
 
 " No case has been cited nor have I been able to find any where 
 a mandamus issued to recall a sentence already passed and to im- 
 pose another. ... I find in Short on Informations, p. 250; 
 ' Mandamus is not granted to undo an act already done. The 
 Court will not allow the validity of the act done to be tried in this 
 way/ The Court has always refused to allow an application for 
 a mandamus to be made the occasion or excuse for obtaining the 
 opinion of the Court on some doubtful question of law." R. v. 
 Case (No. 1), 7 C. C. C. 204, per BRITTON, J., at p. 206. "I 
 cannot command the police magistrate to open the conviction and 
 re-consider, or re-convict. That is unquestionably a judicial act, 
 and aa to that no complaint is made by any one. If the penalty 
 is now changed, the defendant may be deprived of his right to 
 appeal. The defendants' rights must be considered," per BRIT- 
 TON, J., at p. 210. 
 
 Held, in this case, that a mandamus does not lie to compel 
 an inferior Court to render a judgment in terms conformable to 
 the opinion of the superior Court, nor to correct the erroneous 
 decision of an inferior Court in a matter within its jurisdicton, 
 unless by such decision the jurisdiction is denied. See also R. v. 
 Case (No. 2), 7 C. C. C. 212, affirming R. v. Case (Xo. 1), supra. 
 
 The province of the writ of mandamus, in so far as it affects 
 the action of inferior Courts, is not to be extended for the purpose 
 of compelling them to render a particular judgment in accordance 
 with the views of the higher Court, High on Extraordinary Legal 
 Remedies, 3rd ed., s. 149. See The Queen \. Justices of Middle- 
 sex, (1839) 9 A. & E. 540, and R. v. Martin, 18 C. C. C. 107. 
 
 The interference of the Court by mandamus is occasioned by 
 inferior Courts, or persons, refusing to proceed in some course 
 prescribed by law and not in consequence of any misapprehension,
 
 MANDAMUS. 109 
 
 or error in that course, provided they have entered upon it. Lord 
 Denman, at p. 547, in R. v. Eastern (bounties R. W, Co., 10 A. & 
 E. 531 ; R. v. Hewes, 3 A. & E. 725. 
 
 When a magistrate decides erroneously that he has no juris- 
 diction to receive an information, a mandamus will lie to compel 
 him to do so ; but, when he has considered the material on which 
 the application is based and refused to grant the summons, the 
 Court will not interfere by mandamus. R. v. Meehan (No. 2), 5 
 C. C. C. 312. See also R. v. Allerton, 22 C. C. C. 273. 
 
 An application for a mandamus against a magistrate is a civil, 
 not a criminal, proceeding. The procedure is governed in Ontario 
 by the Ontario Judicature Act, and the application for an order 
 absolute must be made to a single Judge in Court and not to a 
 Divisional Court. R. v. Meehan (No. 1), 5 C. C. C. 307. 
 
 The law does not oblige a magistrate to issue his warrant 
 except when, in his opinion, a case for so doing is made out ; he is 
 not obliged to give all his reasons, he has merely to express 1 his 
 opinion. That the magistrate did not properly appreciate the evi- 
 dence submitted upon an application for the issue of the warrant 
 of arrest for an indictable offence, is not a ground for a mandamus 
 to compel him to issue a warrant. Thompson v. Desnoyers 
 (1899), 3 C. C. C. 68. R. v. Biddinger, 22 C. O. C. 217. 
 
 The County Court Judge, having heard argument and given a 
 decision on the legal merits, the Court has no right to decide or 
 inquire whether such decision was right or wrong. Mandamus to 
 re-open appeal for the purpose of hearing evidence refused. 
 Strang v. Gellatly, (1904) 8 C. C. C. 17. 
 
 A rule nisi was granted for a mandamus to compel a justice to 
 issue a warrant of distress for costs in a case wherein the defend- 
 ant had been convicted and fined under the Fisheries Act for 
 illegal fishing. The Minister of Marine remitted both the fine 
 and costs. On motion to make the rule absolute, the Court was 
 equally divided and no order was made. See judgment of 
 BARKER, J., at p. 45, and cases cited by him. Ex parie Gilbert, 
 (1904) 10 C. C. 0. 38. 
 
 The accused, on acquittal in the Court of General Sessions in 
 Ontario, is entitled to a copy of the record of such acquittal, and 
 a mandamus will lie to the Clerk of the Peace to enforce delivery 
 of the same. R. \. Scully, (1901) 5 C. C. C. 1. 
 
 " It was the duty of the police magistrate, upon receiving the 
 information, to hear and consider the allegations of the informant,
 
 110 PROHIBITION. 
 
 and, if of the opinion that cause for issuing a warrant or sum- 
 mons was not made out, to refuse it, and, having so acted, this 
 Court has no jurisdiction over him. It is his judgment, not mine, 
 nor that of any other Judge, or Court, which is to be exercised 
 under sec. 559 (now sec. 655) of the Criminal Code: see Ex p. 
 Lewis, (1888) 21 Q. B. D. 191; R. v. Paynter, (1857) 7 E. & B. 
 327, and R. v. Dayman, (1857) 7 E. & B. 672. This application 
 must, therefore, be refused." MEREDITH, J., in Re E. J. Parke, 
 (1899) 3 C. C. C. 122. See also Re Broom, 18 C. C. C. 254. 
 
 % 
 
 In cases of mandamus for returns, or false returns, by justices, 
 the provisions set out in Kules 1085-1087 of the Judicature Act 
 of Ontario are substituted for 9 Anne, cap. 25. 
 
 PROHIBITION. 
 
 Prohibition is the proper remedy when an inferior Court is 
 exceeding its jurisdiction, but not when it has committed an error 
 in law, or good conscience, in a case in which it has jurisdiction. 
 Siddal v. Gibson, 17 IT. C. E. 98. 
 
 Prohibition is an extreme measure and granted summarily 
 only in a very plain case of the unlawful exercise of jurisdiction 
 by a subordinate tribunal. Re Cummings & Carleton, 25 0. E. 
 607. 
 
 Where neither the information nor the evidence before the 
 magistrate discloses any offence against the law, prohibition may 
 be granted by a superior Court pending an adjournment ordered 
 by the magistrate for the purpose of deliberating on his finding. 
 Prohibition may be granted ex parte under Nova Scotia Crown 
 Eule 72 in respect of an illegal prosecution under the Nova Scotia 
 Liquor License Act. R. v. Breen, (1904) 8 C. C. C. 146. 
 
 " Prohibition will not lie unless there is a lack of jurisdiction 
 in the judicial officer or Court dealing with the proceedings. 
 Much latitude is contemplated in the course of this preliminary 
 investigation, both in the way of varying and amending and in 
 the reception of evidence, so that the scope of the inquiry may 
 be enlarged and matters touched upon beyond the scope of the 
 original charge. This consideration has been overlooked in re- 
 gard to many of the cases cited. I mean the wide distinction 
 which exists between the magistrate who has plenary jurisdiction 
 to try the offence in a summary way, and the justice who is deal- 
 ing with a preliminary inquiry in respect to an indictable offence 
 which is to be passed on to another tribunal for trial. The dis-
 
 PROHIBITION. Ill 
 
 tinction is adverted to very clearly by Lord Russell, C.J., in The 
 Queen v. Brown, [1895] 1 Q. B., at pp. 126-127." BOYD, C,, in 
 R. v. Phillips, 11 G. C. C. 89, says, at p. 91, ... " In pro- 
 hibition, the only question is whether the justices had jurisdic- 
 tion. If they had refused to hear legal evidence, or decided im- 
 properly upon the evidence, that would be misconduct, but it 
 would be different from acting illegally and without jurisdiction. 
 Regina v. Higgins, 8 Q. B., at p. 150, note in the report in 10 
 Jurist, sub nomine Ex pcwte Higgins, (1843) 838, it is said, the 
 remedy for misconduct would be by criminal information, and if 
 they act maliciously they are liable to an action on the case." 
 BOYD, C., in same case, at p. 93. In this case, the magistrate 
 holding a preliminary inquiry refused to order particulars of a 
 general charge of " conspiracy to defraud the public," and an 
 application for an order of prohibition was refused. 
 
 " No doubt, in a proper case and for a proper excess of juris- 
 diction, the superior Court may, in virtue of articles 50 and 1003 
 of the Code of Civil Procedure of this Province, issue a writ of 
 prohibition to displace, or interfere, in a criminal case, with the 
 control of the proceedings, which must be exercised in the manner 
 and form provided by law, as article 50 says. It does not mean 
 that the superior Court, which is a civil tribunal without criminal 
 jurisdiction, has a right by its writ of prohibition to displace or 
 interfere in a criminal case with the procedure or remedies pro- 
 vided for the case by the Federal Legislature, which has exclusive 
 jurisdiction in criminal law and procedure. Thus, in Audet & 
 Doyon, 10 Q. L. R. 21, McCoRD, J., in delivering the judgment of 
 the majority of the Court, said : ' Prohibition is an extraordinary 
 remedy, and should not be employed where the party has a com- 
 plete remedy in some other and more ordinary form/ * TREN- 
 ITOLME, J., in R. v. Amyot, (1906) C. C. C. 232, at pp. 237, 238. 
 In this case, the Court of King's Bench (Appeal side), Quebec, 
 annulled and quashed a writ of prohibition that had been granted 
 to restrain the enforcement of a summary conviction in a case of 
 selling liquor to Indians. The Court held that a writ of prohibi- 
 tion should not be granted to restrain the enforcement of a sum- 
 mary conviction in a criminal matter while another adequate 
 remedy is available, viz., an appeal from the conviction or, a stated 
 case. See also Laliberte & Fortin, 2 Que. Q. B. 573; Tessier v. 
 Desnoyers, 12 Q. R. S. C. 35. 
 
 Prohibition will not lie to restrain the issue and enforcement 
 of a distress warrant by a justice upon a conviction regular on its
 
 112 PROHIBIT] ON. 
 
 face, and which was within the jurisdiction of the justice making 
 it, such acts being ministerial and not judicial. R. v. Coursey, 
 27 0. R. 181. 
 
 Prohibition will not issue to prevent a hearing where the 
 magistrate has jurisdiction. Beaudry v. Lafontaine, 17 Q. R. S. 
 C. 396. 
 
 " It is 3i principle of universal application and one which lies 
 at the foundation of the law of prohibition, that the jurisdiction 
 is strictly confined to cases where no other remedy exists, and it is 
 always a sufficient reason for withholding the writ that the party 
 aggrieved has another complete remedy at law." High on Extra- 
 ordinary Legal Remedies. 
 
 It has to be remembered that the writ of prohibition is a dis- 
 cretionary writ only, and will not be granted unless there is a 
 clear failure of jurisdiction. R. v. Chipman, (1897) 1 0. C. C. 
 81, per DRAKE, J., at p. 84. 
 
 Held, on motion for prohibition, that there was no authority 
 for the return of the information to the convicting justice after 
 the quashing of the conviction, as the section of the Criminal 
 Code, 1892 (sec. 895), only applies in cases where before that 
 section a procedendo would have been issued to send back a 
 record; that the information was, therefore, not properly before 
 the justice when he issued the second summons, and that he had 
 no jurisdiction to proceed upon it, and a prohibition was granted 
 without costs. R. v. Zickriclc, 11 M. R. 452. 
 
 If the want of jurisdiction of an inferior Court is apparent 
 on the face of the proceedings, the defendant may move at any 
 time for prohibition; but, if it does not so appear, he should first 
 raise the objection in the inferior Court. Wright v. Arnold, 6 M. 
 R. 1, and see Maxwell v. Clark, 10 M. R. 406; see also Farquhar- 
 so;i v. Morgan, [1894] 1 Q. B. 552, and Broad v. Perkins, 21 Q. 
 
 B. D. 533. 
 
 Prohibition will lie against the enforcement of a summary 
 conviction under an invalid municipal by-law: R. v. Sparks, 12 
 
 C. 0. C. 184, also to prevent a County Court Judge entertaining 
 an appeal from the decision of a police magistrate on a summary 
 trial of an indictable offence, when no such appeal lies: Re 
 Buchanan, 22 C. C. C. 199. 
 
 It is also a well recognized doctrine that a writ of prohibition 
 is not to be granted to the applicant therefor as a matter of 
 absolute right: but that it is in the discretion of the Court to
 
 PROHIBITION. 113 
 
 grant or refuse it. Short & Mellor's Crown Office Practice, 2nd 
 ed., p. 255. And see E. v. Nunn, 15 M. E. 288, and R. v. Ham- 
 link, 19 C. C. C. 493. 
 
 Prohibition will be granted upon the application of a stranger 
 to the proceedings when a justice is clearly exceeding his jurisdic- 
 tion, as such is a contempt of the Crown. Worthing ton v. Jef- 
 ries, L. B. 10 0. P. 379; Chambers v. Green, L. B. 20 Eq. 552. 
 Re Holman and Rea, 21 C. C. Cl 11. 
 
 The application for prohibition may be made at the outset of 
 the proceedings, or at the latest stage if the want of jurisdiction 
 is apparent, and there remains anything to prohibit. Brazill v. 
 Johns, 24 0. E. 209. Re Holman and Rea, supra. 
 
 Prohibition is a civil, not a criminal, proceeding. R. v. Suck 
 Sin, 18 C. 0. C. 266. 
 
 ( ('I'.- S
 
 114 INFORMATION AND COMPLAINT. 
 
 CHAPTER V. 
 INFORMATION AND COMPLAINT. 
 
 As all things have their beginning so it is with criminal pro- 
 ceedings. There must be a commencement, and that is made by 
 the laying of an information, or making a complaint, before a 
 justice. 
 
 It is requisite in all summary proceedings of a penal nature 
 that there should be an information or complaint, which is the 
 basis of all the subsequent proceedings and without which the 
 justice is not authorized in intermeddling except where he is 
 empowered by statute to convict on view. Paley, 8th ed., p. 75. 
 
 The distinction between an information and a complaint is that 
 an information is laid against a person charged with the com- 
 mission of, or who is suspected to have committed, an offence 
 for which he is liable by law to be imprisoned, or fined or other- 
 wise punished. A complaint against a person is made when that 
 person is liable by law to have an order made upon him by a 
 justice for payment of money, or to do some act which he ha? 
 refused or neglected to do contrary to law. 
 
 The proceeding which forms the ground work of a conviction 
 is termed " laying " or " exhibiting an information," while the 
 similar proceeding for the obtaining of an order of justices is 
 termed making a " complaint." Paley, 8th ed., pp. 76 and 184. 
 
 As we have seen in Chapter II., by section 14 of the Code the 
 distinction between felonies and misdemeanours is abolished. 
 
 This distinction may be illustrated by the fact that under the 
 old law obtaining money by false pretences was classed as a mis- 
 demeanour, while larceny, burglary, arson and other more heinous 
 crimes were felonies. 
 
 There are some, but not many, indictable offences that can be 
 tried and disposed of by summary conviction, under Part XV. of 
 the Code. For instance, common assault; this is an indictable 
 offence (vide sec. 291), but under sec. 732 the justice may sum- 
 marily hear and determine the charge subject to sub-sec. 2. The 
 application of Part XV.. of the Code is governed by section 706, 
 and upon reference to that section it will be noticed that the 
 provisions of Part XV. are limited :
 
 REQUISITES OF INFORMATION. 115 
 
 (a) To offences or acts for which a person is liable on sum- 
 mary conviction to imprisonment, &c., and (b), to all cases where 
 a complaint is made to a justice upon which he can make a sum- 
 mary order. 
 
 It is necessary for a justice to bear in mind these limitations 
 when an information or complaint is made or laid before him, and, 
 after a recital of the facts, to ascertain by looking at the several 
 provisions of the Code relating to specific offences whether or not 
 he can deal summarily with the offence charged. 
 
 If the offence is an indictable one and there is no provision 
 for its being tried summarily; then, if a warrant is to issue, the 
 information will require to be in writing and made under oath. 
 See section 654 of the Code. 
 
 If the offence is punishable on summary conviction, then the 
 complaint or information need not be in writing or under oath 
 unless it is otherwise provided by Part XV. or by some particular 
 Act or law. See section 710 of the Code. 
 
 It is discretionary with the justice to issue either a summons 
 or warrant as he thinks best. R. v. McGregor, (1895) 2 C. C. C. 
 at p. 413. 
 
 If a warrant is to issue then the information must be under 
 oath. R. v. McNutt, 3 C. C. C. 184; E. v. McDonald, (1896) 3 
 C. C. C. 287. 
 
 It is provided by section 711 of the Code that whenever a 
 warrant is issued in the first instance against a person for an 
 offence punishable on summary conviction, then the justice issuing 
 the warrant shall furnish a copy or copies of the same and cause 
 a copy to be served on the person arrested at the time of his arrest. 
 
 It is the duty of everyone executing a warrant to have it with 
 him and to produce it if required, and any person making an 
 arrest should, when practicable, give notice of the warrant or of 
 the cause of the arrest. See sec. 40 of the Code. 
 
 The magistrate is himself to exercise the discretionary power 
 given under sec. 655 and sec. 711 to issue either a summons or a 
 warrant on a sworn information received by him, that being a 
 judicial act. R. v. Ettinger, (1899) 3 C. C. C. 387; R. v. Mc- 
 Gregor, ante; Thompson v. Desnoyers, (1899) 3 C. C. C. 68. 
 
 When the charge is dismissed for an irregularity in the sum- 
 mons, the magistrate may proceed to issue a new summons either 
 upon a fresh information or upon the original information re- 
 sworn : R. v. Johnson, 17 C. C. C. 172.
 
 116 DISTINCTION BETWEEN INDICTABLE AND OTHER OFFENCES. 
 
 The distinction between indictable offences and offences 
 punishable on summary conviction is defined by the " Interpreta- 
 tion Act," B. S. C. (1906), cap. L, sec. 28, as follows: 
 
 28. Every Act shall be read and construed as if any offence for which 
 the offender may be, 
 
 (a) prosecuted by indictment, howsoever such offence may be therein 
 described or referred to, were described or referred to as an in- 
 dictable offence ; and, 
 
 (6) punishable on summary conviction, were described or referred 
 
 to as an offence ; and, 
 
 all provisions of the Criminal Code relating to indictable offences, or of- 
 fences, as the case may be, shall apply to every such offence. 
 
 2. Every commission, proclamation, warrant or other document re- 
 lating to criminal procedure, in which offences which are indictable of- 
 fences, or offences, as the case may be, are described or referred to by any 
 names whatsoever, shall be read and construed as if such offences were 
 therein described and referred to as indictable offences, or offences, as 
 the case may be. 
 
 In view of the provisions of Part XVI. of the Code, which 
 provides for the summary trial of indictable offences, and the 
 extended -powers given to and the increased responsibilities 
 assumed by magistrates thereunder, the question of the sufficiency 
 of informations dealt with under this part becomes increasingly 
 important, and especially~so in view of the enlarged provisions of 
 section 777 of the Code. And all magistrates who accept the re- 
 sponsibility of dealing with indictable offences under this part 
 of the Oode should scrutinize the information and see that it con- 
 tainimll the necessary ingredients. The information takes the 
 place of the indictment as it contains the offence with which the 
 accused is charged. 
 
 It is to be noted that in sec. 778 the words " information " and 
 " indictment " are neither used nor referred to. The word 
 " charge " is used only and comprehends " the information " used 
 in summary convictions and " indictment " in jury trials. The 
 magistrate on putting the accused to his election must state that 
 he is "charged" with the offence, describing it. If the person 
 charged consents then the magistrate shall " reduce the charge to 
 writing." But, as we shall see hereafter, if the charge has already 
 been reduced to writing (viz., the information), it is not necessary 
 to write it out again. R. v. Shepherd, 6 C. C. O. 463. The offence 
 that is described must be the offence set out in the information : 
 the charge is, therefore, based on the information. 
 
 Sec. 2 (16) declares that the expressions "indictment" and 
 "count" respectively include information and presentment as 
 well as indictment. Section 951 is as follows: 
 
 951. Every count shall be deemed divisible: and if the commission of 
 the offence charged, as described in the enactment creating the offence or
 
 INFORMATION AND INDICTMENT. 117 
 
 as charged in the count, includes the commission of any other offence, the 
 person accused may be convicted of any offence so included which is proved, 
 although the whole offence charged is not proved ; or he may be con- 
 victed of an attempt to commit any offence so included. 
 
 2. On a count charging murder, if the evidence proves manslaughter, 
 but does not prove murder, the jury may find the accused not guilty of 
 murder but guilty of manslaughter, but shalJ not on that count find tne 
 accused guilty of any other offence. 
 
 It is not necessary that the lesser offence should be expressly 
 charged on the face of the indictment. It will be sufficient if the 
 offence charged must of necessity include it: R. v. Smith, (1874V 
 34 U. 0. R. 552 ; R. v. Bird, 5 Cox C. C. 20. See R. v Edwards, 
 (1898) 2 C. C. C. 96. 
 
 The information, being the substratum of the magistrate's 
 jurisdiction and in the nature of an indictment, must contain 
 a complete statement of the offence; for the evidence can only 
 support the original charge, but can by no means extend or supply 
 what is wanting in the information. R. v. Baynes, 2 Salk. 680; 
 R. v. Wheatman, I Doug. 345. 
 
 It is proposed to consider the provisions of the Code as to 
 making complaints and laying informations for indictable offences 
 and for offences punishable by summary conviction together. 
 First, taking up informations respecting indictable offences. 
 
 " In my opinion to prefer a charge under the Speedy Trial sec- 
 Juons of the Code is preferring a document very analogous to an 
 Indictment." GRAHAM, O.J., at p. 184, in R. v. Cross, 14 C. C. 
 U. 171. 
 
 It is absolutely essential in all proceedings to convict a party 
 of an offence created or prohibited under a penal statute, that 
 there should be some information or complaint previously laid 
 before the convicting or some other justice. R. v. Fuller, 1 Ld. 
 Raym. 509. 
 
 A magistrate has no authority to detain a person known to 
 him till some other person makes a charge against him. R. Bir- 
 nie, 5 C. & P. 206. 
 
 Generally speaking any person may be the informer, but some- 
 times the statute giving the penalty allows only particular per- 
 sons to be the informer. Beland v. Boyce, 21 C. C. C. 421, is a 
 good example of this. 
 
 In summary conviction cases, by section 710 of the Code, sub- 
 sec. 4, every complaint or information may be made or laid by the 
 complainant or informant in person or by his counsel, or attor-
 
 118 INFORMATIONS FOR INDICTABLE OFFENCES. 
 
 ney, or other person authorized in that behalf. See R. v. St. 
 Louis, (1897) 1 C. C. C. at p. 144. 
 
 Informations for indictable offences are laid under the pro- 
 visions of sees. 654 and 655 of the Code. The latter was amended 
 in 1909 and 1913, giving power to the justice, if he considers it 
 desirable or necessary, to hear the evidence of any witness or 
 witnesses in addition to the allegations of the complainant, and of 
 compelling them to testify under oath respecting such allegations, 
 before he makes up his mind that a case has been made out for 
 issuing a summons or a warrant. 
 
 It is only required in criminal matters that the information 
 should give a concise and legal description of the offence charged, 
 and that it should contain the same certainty as an indictment. 
 Of course the description of the charge must include every in- 
 gredient required by the statute to constitute the offence. The 
 statement of the offence may be in the words of the enactment 
 describing it or declaring the transactions charged to be an in- 
 dictable offence. 
 
 It is essential that whatever words are used they should be 
 sufficient to give the accused notice of the offence with which 
 .he is charged and to identify the transactions referred to. The 
 absence or the insufficiency of particulars does not vitiate an in- 
 dictment or an information ; but, if it should be made to appear 
 that there is reasonable necessity for more specific information, 
 the Oourt or magistrate may, on the application of the accused 
 person, order that further particulars be given, but such an order 
 is altogether within the judicial discretion of the Judge or magis- 
 trate. WURTELE, J., at pp. 328-329, in R. v. France, (1898) 1 C. 
 C. C. 321, which was approved and followed in R. v. Lee G-uey, 15 
 0. L. R. 235. 
 
 The information must be in writing and under oath as pro- 
 vided in section 654. And it must set forth facts disclosing an 
 offence, and there is no right to issue a warrant where, assuming 
 the facts sworn to be true, no offence is shewn. Ex p. Boyce, 24 
 N. B. R. 347. 
 
 Where there is a right to arrest without a warrant and after 
 arrest a written charge, not under oath, is read over to the prisoner. 
 and the prisoner consents to be tried summarily, the magis- 
 trate has complete jurisdiction to deal with the case. R. v. Mc- 
 Lean, (1901) 5 0. C. C. 67. 
 
 Without an information properly laid a justice has no juris- 
 diction to issue a warrant, and if he does so he is liable in trespass.
 
 INFORMATIONS FOR INDICTABLE OFFENCES. 119 
 
 Appleton v. Lepper, 20 C. P. 138; McGuiness v. Dafoe, (1896) 
 3 C. C. C. 139; McCatherin v. Jamer, 21 C. C. C. 116. 
 
 If a justice, after an offender is brought before him on a war- 
 rant, commits him for trial when there is no prosecution, no ex- 
 amination of witnesses, and no confession of guilt under the 
 statute, he is liable in trespass. Appleton v. Lepper, 20 0. P. 
 138; Connors v. Darling, 23 U. C. B. 541. 
 
 To give the magistrate jurisdiction there must be either an 
 information for a criminal offence, otr the information must 
 be waived by the accused. Crawford v. Beattie, 39 U. C. E. at p. 
 26 ; Caudle v. Seymour, 1 Q. B. 889 ; R. v. Fletcher, L. E. 1 0. C. 
 B. 320 ; or the accused must be in the presence of the magistrate 
 and while there be charged with the offence, and must then sub- 
 mit to answer it. R. v. Hughes, 4 Q. B. D. 614. 
 
 It matters not by what means the defendant is brought before 
 the magistrate. If in fact he is present and the magistrate has 
 jurisdiction over the person and offence he may lawfully proceed 
 with the hearing. The improper arrest does not go to the juris- 
 diction of the magistrate. Ex parte (hberson, (1898) 4 U. 0. U. 
 5lJ7, and' see McGuiness v. Dafoe, (1896) 3 C. 0. C. 139; R. v. 
 Langlois, 20 C. 0. O. 183, and Papillo v. R., 20 C. C. C. 329. 
 
 See, however, Re Baptiste Paul (No. 2), 20 O. C. C. 161, where 
 it was held that the illegal arrest vitiated the proceedings if ob- 
 jected to before the magistrate. 
 
 A written information on a preliminary inquiry is for the 
 protection of the accused, so that he may know the charge against 
 him; but, if the magistrate, on being verbally informed of the 
 offence by the accused himself, issues a summons and the accused 
 attends on its return, a commitment for trial may be made on the 
 depositions taken upon the preliminary inquiry without an in- 
 formation in writing. The committing justice has jurisdiction 
 over the accused on his attending in answer to the summons, al- 
 though objection was taken to the want of an information. If a 
 warrant had issued it would have been different. R. v. Thompson, 
 (1909) 15 C. C. C. 162. 
 
 Where the summons served on defendant recited an informa- 
 tion as laid after the lapse of the period fixed by a statutory limit- 
 ation, the accused was held not bound to appear as the summons 
 showed on its face that the magistrate had no jurisdiction: R. v. 
 Leblanc, 21 C. C. C. 221.
 
 120 INFORMATIONS FOR INDICTABLE OFFENCES. 
 
 Where the justice had issued a warrant of arrest informally 
 and without oath, the defendant, having no knowledge of this 
 defect, made no objection to the same at the hearing of the charge. 
 Held that the irregularity in the process of bringing the defend- 
 ant before the Court had 1 no effect on the jurisdiction and the 
 defendant and a person who committed perjury on the hearing 
 were rightly convicted. R. v. Hughes, (1879) 4 Q. B. D. 614, 
 and see Gray v. Commissioner of Customs. (1884) 48 J. P. 343, 
 and Ex parte Sonier, 2 C. C. C. 121. 
 
 The recital of the information in a warrant is not conclusive 
 evidence of the information having been laid, and evidence may 
 be given to shew that as a matter of fact such information was 
 not kid. Friel v. Ferguson, 15 C. P. 534. 
 
 If the information discloses no offence in law it will not 
 authorise the issue of a warrant by a magistrate, as there is noth- 
 ing to found his jurisdiction. Stephens v. Stephens, 24 C. P. 
 424; Grimes v. Miller, 23 A. R. 764; Anderson v. Wilson, 25 0. 
 R. at .p. 96; McNellis v. Gartshore, 2 0. P. 464; R. v. Holley, 4 
 C. C. C. 510. 
 
 An information for false pretences is not objectionable for 
 not setting out the false pretences with which the defendant is 
 charged, if it follows the form in which an indictment for the 
 same offence may be framed. R. v. Richardson, 8 0. R. 651. 
 Such irregularities or variances will not affect the validity of any 
 proceeding at or subsequent to the hearing. See sees. 669, 859 
 and 863 of the Code. 
 
 It is improper for a magistrate to place a legal construction 
 on the words of the complainant which they do not bear out. For 
 instance, if the statement of the complainant shews trespass 
 only, the magistrate should not construe it as an indictable of- 
 fence or describe it as such in the information. Rogers v. Has- 
 sard, 2 A. R. 507. 
 
 If by reasonable intendment tbe information can be read as 
 disclosing a criminal offence, the rule is so to read it. Laivrenson 
 v. Hill } 10 Ir. C. L. R. 177, at pp. 194, 195; see Anderson v. Wil- 
 son, supra. 
 
 An information under a Provincial Act, which has been held 
 void because in conflict with a Dominion Act subsequently passed 
 dealing with the same subject matter, cannot be amended so as to 
 set out an offence under the Dominion Act. 11. v. Dufrexne, 19 ('. 
 C. C. 414.
 
 CONTENTS OF INFORMATION. 121 
 
 WHAT INFORMATION SHOULD CONTAIN. 
 
 (1) The information should contain the name, address and 
 occupation of the informer. 
 
 (2) The day and year of taking the information and the place 
 where the same is 'taken. 
 
 (3) The description of the justice who receives the informa- 
 tion, shewing his name and authority. 
 
 (4) The name of the offender, or accused, or some other de- 
 scription of him or her. 
 
 (5) The time and place of the commission of the offence. 
 
 (6) The statement of the offence itself. 
 
 These several matters will now be shortly considered in their 
 order. 
 
 (l)The name and occupation of the informer must be given so 
 that the accused may know who his accuser is. 
 
 As we have seen, an information can be laid by anyone for 
 an indictable offence, sec. 654 of the Code. And by sec. 710, by 
 the informant in person, or by his counsel, attorney or other per- 
 son authorised by him in that behalf. 
 
 A sworn information merely stating that the complainant 
 has just cause to suspect and believe and does suspect and believe 
 that the defendant has committed the offence charged, triable un- 
 der the Summary Convictions Act, will not authorize a justice to 
 issue his warrant to arrest in the first instance. It is the duty 
 of a justice, before issuing a warrant, to examine jupon oath the 
 complainant or his witnesses 1 as to the facts upon which suspicion 
 and belief are founded and to exercise his own judgment thereon. 
 Ex parte Boyce, 24 1ST. B. E. 347, followed in Ex parte Coffon, 
 (1905) 11 C. C. C. 48; E. v. Lizotte, (1905) 10 C. C. C. 316, and 
 
 Ux parte Grundy, (1906) 12 C. C. C. 65. 
 
 * 
 
 " I am of opinion that this case is not distinguishable from 
 R. v. Walker, (13 0. E. 83), that the information, being the basis 
 of the subsequent proceedings and without which the justice is 
 not authorized to act, must contain that which the statute con- 
 templates, namely, " the causes of suspicion whatever they may 
 l)e/ ? in order to satisfy the justice that there is reasonable ground 
 for believing " that there is in the place to be searched " " any- 
 thing which there is reasonable ground to believe will afford evi- 
 dence as to the commission of/' the offence charged. CLUTE, 
 J., at p. 60, in R. v. Kehr, (1906) 11 C. C. C. 52.
 
 122 CONTENTS OF INFORMATION. 
 
 Where there is an absolute positive statement by the informer 
 at the time of the laying of the information on oath, before the 
 magistrate issuing the warrant, of the sale or keeping for sale of 
 the liquor, that is sufficient. That is a sufficient declaration upon 
 which to issue a warrant. HANNINGTON, J., at p. 276, in Ex 
 parte Madden, (1908) 13 C. C. 0. 273. 
 
 Section 655 (1) of the Code is applicable under sec. 711 to 
 an information leading to a summary conviction; and, if the 
 sworn information be upon mere information and belief of the 
 deponent without stating the facts upon which such belief is 
 founded, the justice must examine the informant and decide 
 whether or not his statements justify the arrest of the accused 
 before he issues a warrant. R. v. Lorrimer, (1909) 14 C. C. C. 
 430. 
 
 (2) The day and year and place where taken. 
 
 The day and year on which an information is exhibited must 
 be stated therein as well that it may appear to be subsequent to 
 the offence, and prior to all the other proceedings, as in order 
 to ascertain that the prosecution is within the time limited by 
 the particular statute on which it is founded. R. v. Kent, 2 Lord 
 Kaym. 1546; R. v. Fuller, 1 Idem 510. In R. v. Kent the con- 
 viction was quashed because the information was set out to be ex- 
 hibited on 2nd Nov., 1 Geo. II., and the conviction was laid to 
 be on 2nd Oct., 1 Geo. II. 
 
 The place also where the information is stated to be received 
 must be stated in it, in order to shew that the magistrate at the 
 time was acting within his jurisdiction. Kite & Lane's case, 1 
 B. & C. 101. 
 
 If a magistrate's summons is issued on an information pur- 
 porting to have been sworn at a specific time and place, and the 
 defendant appears thereon and pleads to the charge, the pro- 
 ceedings will not be quashed on certiorari because it is after- 
 wards shewn that the information was not in fact sworn at such 
 time and place. Ex parte Sonier, (1896) 2 0. C. 0. 121. 
 
 Where the statutory offence is the furnishing of intoxicating 
 liquor to a person known to the accused to have been interdicted, 
 and a time limit is provided for laying information therefor, an 
 information within the time, but omitting to charge knowledge 
 of the interdiction, cannot be amended to include such statement 
 after the expiry of the time limit. The original information in 
 such case alleges no offence, and is consequently to be treated on
 
 CONTENTS OF INFORMATION. 123 
 
 amendment as a new information. R. v. Guertin, (1909) 15 C. 
 C. C. 251, and see cases ante, also R. v. Speed, 17 C. C. C. 24, 
 R. v. O'Connor, 20 O. C. C. 75. 
 
 Upon taking an information the magistrate is not bound 
 to issue a summons or warrant upon the same day, notwith- 
 standing the words "this day" in the statutory form (5 and 6), 
 but may take time to consider whether a case is made out for so 
 doing. Where a statute provides that information thereunder 
 shall be laid within a fixed number of days after the offence, 
 but makes no limitation as to the summons, or other proceedings, 
 the summons calling upon the accused to answer may be issued 
 after the period of limitation upon an information taken within 
 the period. R. v. Hudgins, (1907) 12 C. C. C. 223. 
 
 Laying the information is the commencement of a prosecu- 
 tion. Thorpe v. Priestnall, [1897] 1 Q. B. 159; R. v. Lennox, 
 (1878) 34 U. C. R. 28; R. v. Kerr, 26 C. P. 214; R. v. Siting er, 
 3 C. C. C. at p. 391. 
 
 The justice is required to hear and consider the allegations 
 in the complaint or information and the issue of the summons 
 is dependent upon his opinion as to whether or not a case is 
 made out. This must be held to be a judicial act on the authority 
 of Hope v. Evered, 17 Q. B. D. 338, and Lea v. Oharrington, 23 
 Q. B. D. 45, also of RITCHIE, J., at pp. 389-90, in R. v. Ettinger, 
 3 C. C. C. 387, and it is consequently not one of the rights which 
 a justice may exercise outside the limits of his jurisdiction. 
 
 The general rule is that a justice is not liable for any mistake 
 or error of judgment or for anything he does judicially when 
 acting within his jurisdiction, though he may be wrong. Gordon 
 V. Denison, 24 0. R. 576, 22 A. R. 315. 
 
 If a justice exceeds the authority given him in his acts even 
 within his jurisdiction, he thereby subjects himself to an action; 
 so that, if he commits a prisoner for re-examination for an un- 
 reasonable time, although he does so from no improper motive, 
 he is liable to an action for trespass for false imprisonment. 
 Davis v. Oapper, 10 B. & C. 28, and see cases cited in chapter on 
 Jurisdiction, ante. 
 
 The limitations as to time for commencing the prosecution 
 of criminal offences under the Code, and of actions for penalties 
 or forfeitures are governed by Part XXIV. of the Code, sections 
 1140 to 1151. 
 
 By section 1142, in the case of offences punishable on summary 
 conviction, if no time is specially limited for making any complaint
 
 124 TIME WITHIN WHICH INFORMATION LAID. 
 
 or laving any information in the Act or law relating to the parti- 
 cular case, the complaint shall be made or information laid within 
 six months from the time when the matter of the complaint or in- 
 formation arose, except in the North-West Territories and the 
 Yukon Territory, where the time is extended to twelve months. 
 
 The provisions of this section apply only to cases arising and 
 in which proceedings have been taken under the summary con- 
 viction sections of the Code. Where a man was indicted for rape 
 and the jury found him guilty of common assault only, it was 
 objected that there could be no conviction for common assault 
 as the complaint was not made or information laid within six 
 months from the time when the matter of complaint or informa- 
 tion arose. It was held that, the indictment being for rape and 
 it being assumed that the information or complaint was one 
 charging the same offence, there can be no pretence that the 
 offence charged was " an offence punishable on summary con- 
 viction," or one that could be tried under the provisions of the 
 Code relating to summary, convictions. R. \. Edwards, (1898) 
 2 C. C. C. 96, and see R. v. McKinnon, 5 C. C. C. 301 ; R. v. 
 Lee How, (1901) 4 C. C. 0. 551; R. v. Boutilier, (1904) 8 C. C. 
 C. 82: R. v. Adams, (1892) 24 N. S. E. 559. 
 
 As it did not appear by the information that it was laid 
 within six months after the commission of the offence, or that 
 the defendant had committed the offence within six months pre- 
 vious to its being laid . . . the magistrate was acting with- 
 out jurisdiction, and should be prohibited from proceeding fur- 
 ther in the matter. R. v. Breen, (1904) 8 C. C. C. 146; and see 
 Paley, 8th ed., p. 60, and cases there cited. See also 7?. v. Olarl-, 
 (1906) 12 C. C. C. 485, and cases there cited, and In re Fisher v. 
 Th* Village of Carman, (1905) 15 M. B. 475. 
 
 Where the law requires that a prosecution shall be commenced 
 within a limited time after the commission of the offence, it is 
 sufficient if the information is laid within that time. R. v. 
 Barrett, 1 Salk. 383. 
 
 But when the law provides that a person shall be convicted 
 within a stated time after the commission of the offence, the 
 mere laying of the information within that time will not suffice : 
 the conviction itself must be made within the time limited or it 
 will be void. R. v. Mainwaring, 27 L. J. M. 0. 278. 
 
 Where the time of the offence is stated in a summary con- 
 viction as being between two dates and includes a period prior
 
 DESCRIPTION OF JUSTICE IN INFORMATION. 125 
 
 to the time limit within which information could be laid, the con- 
 viction will be quashed for want of jurisdiction if the evidence does 
 not shew that the offence was in fact committed within the time 
 limit. Ex parte Hebert, (1908) 15 C. C. C. 165. 
 
 (3) The description of the justice who receives the information, 
 shewing his name and authority. 
 
 The information must be laid before a magistrate having 
 jurisdiction over the subject-matter of the charge. R. v. Dowting, 
 (1889) 17 0. R. 698, and see sections 577, 653, 654 of the Code. 
 
 One justice is competent to receive it except, as it seems, 
 when the statue on which the information is founded expressly 
 requires it to be laid before two justices. See section 708 of the 
 Code. 
 
 The authority of justices of the peace appointed by commis- 
 sion from the Crown is limited to the respective counties therein 
 specified, and that of the magistrates in separate jurisdiction 
 is confined to their respective districts: it is in no case attached 
 to the person so as to be capable of being exerted elsewhere than 
 within those limits. 
 
 They can only exercise their powers while they are themselves 
 within the limits of their district. But they may exercise acts 
 that are purely ministerial, such as taking recognizances, etc., 
 elsewhere than within their county. Any judicial act done and 
 performed by them is utterly void unless done within their dis- 
 trict, except where it is otherwise specially provided' by statute. 
 And, since the decision of RITCHIE, J., in R. v. Ettinger, supra, 
 that under the provisions of sec. 655 the taking of an information 
 for an indictable offence is a judicial act, a justice should never 
 receive an information outside the limits of his jurisdiction. 
 
 If anything is directed to be done, by or before a magistrate or 
 justice of the peace, it shall be done by or before one whose juris- 
 diction or powers extend to the place where such thing is to be 
 done. R. v. Beemer, 15 0. R. 266, and see R. v. Fearman, 22 
 0. R. 456. 
 
 See the chapter on " Jurisdiction of Justices," and cases there 
 cited, ante, pages 73, 74, and see Paley, 8th ed., p. 211. 
 
 The Interpretation Act, R. S. C. (1906), cap. 1, sec. 31, con- 
 tains general provisions as to the jurisdiction of magistrates and 
 justices of the peace as follows: 
 
 31. In every Act. unless the contrary intention appears, 
 (a) if anything is directed to be done by or before a magistrate or 
 a justice of the peace, or other public functionary or officer, it
 
 126 NAME OF OFFENDER TO BE STATED. 
 
 shall be done by or before one whose jurisdiction or powers extend 
 
 to the place where such thing is to be done ; 
 (ft) whenever power is given to any person, officer or functionary, to 
 
 do or enforce the doing of any act or thing, all such powers shall 
 
 be understood to be also given as are necessary to enable such 
 
 person, officer or functionary to do or enforce the doing of such 
 
 act or thing ; 
 (c) when any act or thing is required to be done by more than two 
 
 persons, a majority of them may do it ; 
 
 See further sections 584, 653 and 707 of the Code as to the 
 jurisdiction of magistrates. 
 
 (4) The name of the offender or accused or some other descrip- 
 tion of him or her. 
 
 If there are several offenders each must be named. 
 
 Apart from statutory provisions, no man is to escape because 
 his name is not known, and if he refuses to disclose it he may 
 be described as a person whose name is unknown to the magis- 
 trate and! identified by some fact; for instance that he is person- 
 ally brought before him by a certain constable. 
 
 In like manner the name of the person or persons aggrieved 
 should be accurately stated if known, and if not it should be so 
 stated. Paley, 8th ed., 211, and cases there cited. 
 
 In summary convictions it is no longer necessary to the valid- 
 ity of the information, and the same shall not be deemed objec- 
 tionable or insufficient because it " does not contain the name of 
 the person injured, or intended or attempted to be injured." See 
 sec. 723 (a) of the Oode. 
 
 (5) The time and place of the commission of the offence. 
 
 It is not necessary that the time should be laid according to 
 the truth, for if it be stated previously to the finding of the in- 
 dictment, and the place be within the county, or to the extent 
 of the Court's jurisdiction, a variance between the indictment 
 and evidence in time when the offence was committed willnot 
 be material. 2 Inst. 318. 
 
 It is, however, necessary to state the day and year according 
 to the fact where the precise date of a iact is a necessary Ingre- 
 dient in the 1 Offence. R v. i'reharne, l J\ioo. C. C. 298. 
 
 It is not necessary to mention the hour in an indictment (2 
 Hawk., ch. 25, sec. 76) ; and if it be stated no exception is allowed 
 to it, except in cases of burglary, when it must be laid for the 
 purpose of shewing that the offence was committed in the night 
 time.
 
 TIME AND PLACE OF OFFENCE. 127 
 
 Though the day, or year, be mistaken in the indictment, yet 
 if the offence were committed in the same county, though at an- 
 other time, the offender ought to be found guilty. 2 Hale, 179. 
 
 A conviction for selling liquor in violation of law on the 24th 
 or 25th days of December, both dates inclusive, is good. Ex parte 
 Teed, 21 C. C. C. 255. 
 
 A justice has no jurisdiction to issue a warrant, under Code 
 sec. 653, upon an information which does not state either the 
 place where the offence was committed, or that the offence is 
 indictable and triable in the Province: Campbell v. Walsh, 18 C. 
 C. C. 304. 
 
 As to the necessity of defining the place where an offence was 
 committed see, further, at pages 129 et seq., where the subject is 
 more fully discussed. 
 
 By sec. 128 of " The Criminal Procedure Act," ch. 174, E. S. 
 C. 1886, it was provided that no indictment should be held to be 
 insufficient for omitting to state the time at which any offence 
 was committed, in any case where time is not of the essence of 
 the offence, or for stating the time imperfectly, or for stating the 
 offence to have been committed on a day subsequent to the find- 
 ing of the indictment or on an impossible day, or on a day that 
 never happened. These provisions were taken from the Imperial 
 Act, 14 & 15 Vic., ch. 100, sec. 24. They were not re-enacted in* 
 the Code ipsissima verba, but are presumably included in and 
 covered by sections 852, 853. Section 855 provides that no count 
 shall be deemed objectionable or insufficient for the reason only 
 that certain statements which are enumerated are not contained 
 in the count. Amongst these we find no reference to time. In 
 fact in none of these sections, nor in section 859 relating to par- 
 ticulars, is time referred to. Sections 852, 853, 854 and .855 en- 
 act as follows: 
 
 They are printed here because many of their provisions are 
 helpfu] in preparing informations for indictable offences. 
 
 GENERAL PROVISIONS AS TO COUNTS. 
 
 852. Every count of an indictment shall contain, and shall be suffi- 
 cient if it contains in substance, a statement that the accused has com- 
 mitted some indictable offence therein specified. 
 
 2. Such statement may be made in popular language without any 
 technical averments or any allegations of matter not essential to 'be 
 proved. 
 
 3. Such statement may be in the words of the enactment describing 
 the offence or declaring the matter charged to be an indictable offence, or 
 in any words sufficient to give the accused notice of the offence with which 
 he is charged. 
 
 4. Form 64 affords examples of the manner of stating offences.
 
 128 FRAMING OF COUNTS IN INDICTMENTS. 
 
 853. Every count of an indictment shall contain so much detail of 
 the circumstances of the alleged offence as is sufficient to give the ac- 
 cused reasonable information as to the act or omission to be proved 
 against him, and to identify the transaction referred to : Provided that the 
 absence or insufficiency of such details shall not vitiate the count. 
 
 2. A count may refer to any section or subsection of any statute 
 creating the offence charged therein, and in estimating the sufficiency of 
 such count the Court shall have regard to such reference. 
 
 3. Every count shall in general apply only to a single transaction. 
 
 854. A count shall not be deemed objectionable on the ground that 
 it charges in the alternative several different matters, acts or omissions 
 which are stated in the alternative in the enactment describing anj- in- 
 dictable offence or declaring the matters, acts or omissions charged to be 
 an indictable offence, or on the ground that it is double or multifarious. 
 
 855. No count shall be deemed objectionable or insufficient for the 
 reason only, 
 
 (a) that it does not contain the name of the person injured, or in- 
 tended, or attempted to be injured ; or 
 
 (6) that it does not state who is the owner of any property therein 
 mentioned ; or, 
 
 (c) that it charges an intent to defraud without naming or describing 
 the person whom it was intended to defraud ; or, 
 
 (d) that it does not set out any document which may be the subject 
 of the charge ; or, 
 
 (e) that it does not set out the words used where words used are the 
 subject of the charge ; or, 
 
 (/) that it does not specify the means by which the offence was com- 
 mitted ; or, 
 (g) that it does not name or describe with precision any person, place 
 
 or thing; or, 
 
 (ft) that it does not, in cases where the consent of any person, official 
 or authority is required before a prosecution can be instituted, state 
 that such consent has been obtained. 
 
 2. No provision contained in this Part as to matters which are not 
 to render any count objectionable or insufficient shall be construed as res- 
 tricting or limiting in any way the general provisions of sections eight 
 hundred and fifty-two and eight hundred and fifty-three. 
 
 Amongst the " details of circumstances " mentioned in sec. 
 853, the time should be given in all cases where it is of the essence 
 of the offence. 
 
 The evidence must support the charge by proof of every ma- 
 terial fact, assigning a specific date and place to the offence. 
 
 Any variance between the information and the evidence ad- 
 duced in support thereof as to the parish or township, in which 
 the offence is alleged to have been committed, is not to be deemed 
 material, provided it be proved to have been committed within 
 the jurisdiction of the justices hearing the information. Paley, 
 8th ed., 138, 139. 
 
 On the ground that the magistrate's jurisdiction is limited 
 in local extent, the place where the offence was committed should 
 be stated in the conviction as well as proved by the evidence; 
 in order that the complaint may be one over which the magis- 
 trate's cognizance extends. The reports of cases applicable to
 
 OMISSIONS NOT FATAL TO INFORMATIONS. 129 
 
 this point, as well as the direction in the statutory form, establish 
 that the facts which form the subject of the conviction must 
 appear to have arisen at some place within the jurisdiction of 
 the convicting magistrate. Paley, 8th ed., p. 216. 
 
 An application to quash a conviction for selling liquor, con- 
 trary to sec. 130 of the Liquor Act of Manitoba, was made on 
 the ground that the conviction did not shew where the offence 
 had been committed or that it had been committed in Manitoba. 
 MATHERS, J. : " It is a well known principle that the jurisdic- 
 tion of an inferior court must "appear on the face of the proceed- 
 ings or it will be presumed to have acted without jurisdiction/' 
 Johnston v. O'Reilly, (1906) 12 C. C. 0. 219. See Re Don- 
 nelley, 20 C. P. 165; R. v. Spain, (1889) 18 0. E. 385; R. v. 
 Shepherd, (1902) 6 C. C. C. 463; 9 Am. & Eng. Encye. 536, and 
 R. v. Picard, 21 C. 0. C. 250. See also sees. 577, 653 and 665 of 
 the Code and the chapter on jurisdiction, ante, page 73. 
 
 If a particular locality be an ingredient in the offence charged 
 the information must define the requisite locality by express alle- 
 gation. R. v. Jarrald, 32 L. J. M. 0. 258. 
 
 Courts and magistrates are indeed bound ex officio to take 
 notice of the known divisions of the Kingdom as to whether such 
 a place is within or without the bills of mortality. R. v. St. 
 Maurice, 16 Q. B. 908. But not so for the local situation and dis- 
 tances of different places in the counties from each other. Dey- 
 lell's Case, 4 B. & Aid. 243 ; R. v. Edwards, 1 East. 279 ; Thome 
 V. Jackson, 3 C. B. 661. 
 
 A conviction by a justice of the peace shewed on its face 
 that the offence was " committed at Pincher Creek in the said 
 Province," following the words of the information. The caption 
 in the information and in the conviction mentioned the Province 
 of Alberta. Pincher Creek is in the Province of Alberta, but this 
 was not disclosed in the evidence. Held, that judicial notice 
 can be taken of such a fact of local geography and that the con- 
 viction was not invalid for want of jurisdiction. R. v. C. P. Ry. 
 Co., (1908) 8 W. L. E. 825, 1 Alta. L. E. 341, 14 C. C. C..1. 
 
 An allegation of the place of the offence is a material one 
 and necessary to be proved to confer jurisdiction where the ac- 
 cused was not found or apprehended in the same county in which 
 the trial is to take place. E. v. O'Gorman, (1909) 15 C. C. C. 
 173. 
 
 C.C.P. 9
 
 130 LOCAL DESCRIPTION IN INFORMATIONS. 
 
 By section 844 of the Code it is not necessary to state any 
 venue in the bod} 1 of any indictment, and the district, county or 
 place named in the margin thereof shall be the venue for all the 
 facts stated in the body of the indictment. (2) If local descrip- 
 tion is required such local description shall be given in the body 
 of the indictment. 
 
 The word " venue " in this section means the place where the 
 crime is charged to have been committed. KILLAM, J., in Smiihe- 
 man v. The King, (1905) 9 C. C. C. 17, 35 S. C. E. 490. 
 
 By sec. 2, sub-sec. (16) "indictment" and "count" respec- 
 tively include information and presentment as well as indictment, 
 etc. " See R. v. Coolen, (1904) 8 O. C. C. 157. 
 
 It would thus appear that stating the place in the margin 
 of the information would be sufficient, and it need not be set 
 out in the bod}- 1 of the information, except as provided by sec. 
 844 (2), if local description is required. 
 
 There are several cases in which local description is required 
 to be set out in the body of the information or indictment, for 
 instance: (a) Burglary, R. v. St. John, 9 C. $ P. 40; (6) House- 
 breaking, R: v. Bullock, cited in 1 Mood. 324n; (c) Stealing in 
 a dwelling-house, R. v. Napper, 1 Mood. 44; (d) Being found 'by 
 night armed with intent to break into a dwelling, &c., and to 
 commit felony therein, R. v. Jarrold, L. & C. 301, 32 L. J. M. C. 
 258; (e) Sacrilege, Arch. C. Prac. 24th ed., 707: (/) Riotously 
 demolishing churches, houses, machinery, &c., R. v. Richards, 1 
 M. & Rob. 177; (g) Maliciously firing a dwelling-house, perhaps 
 an out-house, but not a stack, R. v. Woodward, 1 Mood. O. C. 
 323; (h) Forcible entry, 2 Leon. 186; (i) Xuisance to highways, 
 R. v. Steventon, 1 C. & K. 55 ; (/) Malicious injuries to sea banks, 
 mill dams or other local property, 1 Taylor Ev., 268, 10th edition. 
 
 There are also some 1 other exceptions to what may now be 
 considered as the general rules that the statement of time and 
 place in an indictment is unnecessary, and that the omission of it 
 or any mistake respecting it is immaterial. 1. The dates of bills 
 of exchange and other written instruments must be truly stated 
 when necessarily set out. 2. Deeds must be pleaded either accord- 
 ing to the date they bear, or to the day on which they were de- 
 livered. 3. If any time stated in the indictment is to be proved 
 by matter of record, it must be truly stated. 4. If the precise 
 date of a fact be a necessary ingredient it must be truly stated : 
 see R. v. Treharne, I Moody C. 0. 298. 5. If the statute on 
 which the indictment is framed gives the penalty to the poor
 
 DESCRIPTION OF LOCALITY OF OFFENCE. 131 
 
 of the parish in which the offender was committed, the parish 
 must be truly stated. 6. Where a place named is part of the de- 
 scription of a written instrument, or is to be proved by matter 
 of record, it must be truly stated. 7. If the place where the fact 
 occurred be a necessary ingredient in the offence, it must be 
 truly stated, and any variance in these several respects between 
 the indictment and the evidence will be fatal and the defendant 
 must be acquitted unless the variance be amended, at the trial. 
 
 Where a place is required to be stated as a matter of local 
 description any variance between the description of it in the 
 indictment and the evidence would, unless amended, be fatal. 
 Thus for instance in indictments for stealing in a dwelling- 
 house, etc., for burglary, for arson, or for forcible entry or the 
 like, if there be any variance between the indictment and evidence 
 in the name of the parish or place where the house is situate, or 
 in any other description given of it, it will be fatal unless 
 amended. See Archbold's Plea, and Evi., 24th ed. (1910), p. 60. 
 As to variance and amendment of indictments, see sees. 889 to 893 
 of the Code. 
 
 Where the offence is begun in one county and completed in 
 another the venue may be laid in either county. R. v. Murdoch, 
 21 L. J. M. C. 22, R. v. Taylor, 3 Bos. & P. 596 ; Code, sec. 584. 
 
 A person summoned but not arrested 1 for trespassing on a 
 railway track is not liable to be tried elsewhere than in the 
 local jurisdiction wherein the offence was committed. R. v. 
 Hughes, (1895) 2 C. C. C. 332. 
 
 By section 584 of the Code offences committed on water be- 
 tween two or more magisterial jurisdictions or near the bound- 
 ary between jurisdictions and in respect to mail or vehicles or ves- 
 sels passing through several jurisdictions, may be considered as 
 having been committed in any one of such jurisdictions. See 
 R. v. BurTce, (1900) 5 C. C. C. 29. R. v. Hughes, supra. 
 
 SPECIAL JURISDICTION. 
 
 584. For the purposes of this Act, 
 
 (a) where the offence is committed in or upon any water, tidal or 
 other, or upon any bridge, between two or more magisterial juris- 
 dictions, such offence may be considered as having been committed 
 in either of such jurisdictions ; 
 
 (6) where the offence is committed on the boundary of two or more 
 magisterial jurisdictions or within the distance of five hundred yards 
 from any such boundary, or is begun within one magisterial juris- 
 diction and completed within another, such offence may be ^ con- 
 sidered as having been committed in any one of such jurisdictions ;
 
 132 OFFENCES COMMITTED OUTSIDE JURISDICTION. 
 
 (c) where the offence is committed on or in respect to a mail, or a 
 person conveying a post letter bag, post letter or anything gent by 
 post, or on any person, or in respect of any property, in or upon 
 any vehicle employed in a journey, or on board any vessel em- 
 ployed on any navigable river, canal or other inland navigation, 
 the person accused shall be considered as having committed such 
 offence in any magisterial jurisdiction through which such vehicle 
 or vessel passed in the course of the journey or voyage during 
 which the offence was committed ; and where the centre or other 
 part of the road, or any navigable river, canal or other inland navi- 
 gation along which the vehicle or vessel passed in the course of such 
 journey or voyage, is the boundary of two or more magisterial juris- 
 dictions, the person accused of having committed the offence may 
 be considered as having committed it in any one of such jurisdic- 
 tions. 
 
 For offences committed on the high seas see sec. 656; and for 
 desertion from His Majesty's service, see sec. 657. These sec- 
 tions will be dealt with later on. 
 
 By sec. 591 of the Code it is provided: 
 
 591. Proceedings for the trial and punishment of a person who is not 
 a subject of His Majesty, and who is charged with any offence committed 
 within the jurisdiction of the Admiralty of England, shall not be instituted 
 in any Court in Canada except with the leave of the Governor-General, 
 and on his certificate that it is expedient that such proceedings should be 
 instituted. 
 
 This section does not prevent a magistrate from proceeding 
 with the preliminary hearing of an indictable offence without 
 the leave of the Governor-General. R. v. Tano, 14 C. C. C. 440. 
 
 The great inland lakes of Canada are within the Admiralty 
 jurisdiction, and offences committed on them are as though com- 
 mitted on the high seas, and any magistrate of this Province 
 (Ontario) has authority to incfuire into offences committed on 
 said lakes although in American waters. R. v. Sharpe, 5 P. E. 
 135. See, also, R. v. Cody, 23 C. C. C. 211. 
 
 By sec. 855 (h) of the Code, no count shall be deemed objec- 
 tionable or insufficient, in cases where the consent of any person, 
 official or authority is required before a prosecution can be insti- 
 tuted, because it does not state that such consent has been obtained. 
 
 (6) The statement of the offence itself. 
 
 We have seen by sec. 852 of the Code that a count in an in- 
 dictment will be sufficient if it contains a statement that the 
 accused has committed one of the indictable offences therein speci- 
 fied. Such statement may be made in popular language without 
 any technical averments of matter not essential to be proved, and 
 such statement may be in the words of the enactment describing 
 the offence or declaring the matter charged to be an indictable 
 offence . . . or in any words sufficient to give the accused 
 notice of the offence with which he is charged. See Form 64.
 
 DEFECTS AND OBJECTIONS. 133 
 
 Each count of an indictment must contain a statement of all 
 the essential ingredients which constitute an offence. R. v. Weir 
 (No. 5), (1900) 3 C. C. C. 499. 
 
 Every count shall in general apply only to a single transac- 
 tion. See sec. 853 (3). 
 
 Section 723 of the Code contains the provisions relating to 
 defects and objections in informations, warrants, &c., issued under 
 Part XV. relating to Summary Convictions, as follows: 
 
 DEFECTS AND OBJECTIONS. 
 
 723. No information, complaint, warrant, conviction or other pro- 
 ceeding under this Part shall be deemed objectionable or insufficient on 
 any of the following grounds that is to say, 
 
 (a) that it does not contain the name of the person injured, or in- 
 tended or attempted to be injured ; or, 
 
 (6) that it does not state who is the owner of any property therein 
 mentioned ; or, 
 
 (c) that it does not specify the means by which the offence was com- 
 mitted ; or, 
 
 (d) that it does not name or describe with precision any person or 
 thing. 
 
 2. The justice may, if satisfied that it is necessary for a fair trial, 
 order that a particular, further describing such means, person, place or 
 thing, be furnished by the prosecutor. 
 
 3. The description of any offence in the words of the Act or any order, 
 by-law, regulation or other document creating the offence, or any similar 
 words, shall be sufficient in law. 
 
 In the subject under discussion, the provisions of sub-sec. 3 
 of sec. 723 are especially material. These provisions of sec. 
 723 are taken from the Imperial Act, 11 and 12 Vic., ch. 43. 
 Before this Act, the information must have contained an exact 
 description of the offence. And now, where 11 and 12 Vic., ch. 
 43, is not applied and the information is recited in the convic- 
 tion, a direct and positive charge must be stated against the de- 
 fendant; it does not suffice to state merely facts amounting to a 
 presumption of guilt, however sufficient such facts may be as 
 prima facie evidence against him. Thus where the charge in an 
 information (under the 8 Anne, ch. 18, sec. 3, for selling bread 
 under the size) was that the bread wanting so much weight was 
 bought in the shop of the defendant, it was held that the charge 
 ought to have been more direct, viz., of the sale of so much bread 
 by the defendant; for, though the fact of a servant selling in his 
 master's shop is good evidence against the master, still it is 
 only evidence, and what is evidence merely is not enough to be 
 laid in the information. R. v. Bradley, 10 Mod. 155. All the 
 facts necessary to support the proceeding must be expressly 
 alleged and not left to be gathered by inference or intendment. 
 The description of the charge must include in express terms every
 
 134 DEFECTS AND OBJECTIONS. 
 
 ingredient required by the statute to constitute the offence, for 
 nothing must be left for intendment or inference or argument 
 for helping out the description. R. v. Jukes, 8 T. R. 536; R. v. 
 Fuller, 1 Ld. Raym. 509; R. v. Trelawney, 1 T. E. 222. 
 
 A statement of the offence by way of recital will not do. R. 
 v. Crowhurst, 2 Ld. Eaym. 1363. It must not be stated in the 
 alternative or disjunctive. A conviction on the 6 Geo. IV., c. 
 108, s. 49, for being on board a boat liable to forfeiture by see. 3, 
 and having casks attached thereto " of the description used, or 
 intended to be used for the smuggling of spirits," was held bad, 
 Ex parte Pain, 5 B. & C. 251. It must not be stated in an. argu- 
 mentative way. 
 
 The information must not charge more than one offence in 
 the same count, otherwise it will be bad' for duplicity. Thus a 
 conviction under 11 Geo. IV. & 1 Will. IV., c. 64, for keeping a 
 house open for the sale of beer, and selling beer and suffering it 
 to be drunk on the premises at a time of day prohibited -by an 
 order of justices, and fining the party charged in a single penalty 
 for " the offence," was held bad as charging more than one dis- 
 tinct offence. Newman v. Bendyshe, 10 A. & E. 11. See sec. 710 
 of the Code, sub-sec. 3, " Every information shall be for one 
 offence only, and not for two or more offences." 
 
 An information in a summary trial proceeding under Part 
 XVI. of the Code is, by sec. 2 (16), to be considered as a " count" 
 or " indictment " as regards formal and other objections cured 
 by .the general provisions as to counts (Code, sees. 852-858), and 
 such information is not objectionable on the ground that it 
 charges in the alternative several different matters, acts or omis- 
 sions, which are stated in the alternative in the statute by which 
 the offence is defined. R. v. Mali Sam, 19 C. C. 0.1. 
 
 A person cannot be charged with one offence and convicted 
 of two offences. R. v. Farrwr, 1 Ter. L. E. 308. 
 
 If objection is taken before the magistrate, all but one charge 
 should be struck out, and evidence heard as to that one only. R. 
 v. Alward, (1894) 25 0. E. 519. 
 
 In my opinion, it was the duty of the justice, when the objec- 
 tion was taken, to have amended the information by striking out 
 all but one of the charges and to have heard the evidence upon 
 that charge only. The fact that he overruled the objection, and 
 proceeded to hear the evidence upon the three charges, renders 
 the conviction void. Scott, J., in 7?. v. Auniin, (1905) 10 C. 0. 
 C. 34.
 
 DEFECTS AND OBJECTIONS. 135 
 
 A conviction for keeping a house of ill-fame on a date named, \y 
 " and on otner 'days and times before that day," is sufficiently 
 certain as to time and does not constitute a charge 0? a distinct 
 offence upon each of those days! R. v. Williams, (1.876) 37 U.I?. 
 B. 540; Onley v Gee, 30 L. J. M. C. 222. 
 
 The information charged that the defendant, " within the 
 space of 30 days last past, to wit, on the 30th and 31st day of 
 July, 1892," did unlawfully sell liquor. The Court was divided 
 in opinion as to whether the information charged two several 
 offences, or only the single offence of selling unlawfully within 
 the thirty days ; it was held that the defect was one " in substance 
 and form " within the meaning of sec. 847 (now 724) and did 
 not invalidate an otherwise valid conviction for a single offence. 
 R. v. Hazen, (1893) 20 A. R. 633. 
 
 In drawing an information or indictment, under sec. 517 of 
 the Code (injuries to railways), it is not sufficient to allege that 
 the accused " did unlawfully in a manner likely to cause danger 
 to valuable property without endangering life or person do an 
 unlawful act" without giving some particulars shewing in what 
 the alleged unlawful act consisted; and such an information or 
 indictment is bad as not disclosing any offence. R. v. Porte, 
 (1908) 18 M. R. 222, 14 C. C. C. 238. 
 
 In the information, the charge must be set out in such distinct 
 terms that the accused may know exactly what he has to answer, 
 for the accused cannot be convicted of a different offence from 
 that contained in the information. Martin v. Prid,geon, 28* L. 
 J. M. C. 179. 
 
 A concise and legal description of the offence should be given. 
 R. v. France, 1 C. C. C'. 321. 
 
 A variation from the precise words of the statute is not fatal \/ 
 
 if the words used are such as bring the case within the plain mean-_ 
 mg of the statute.^ Fanning v. Gough, 18 C. C. C. 66. 
 
 Now every count of an indictment must contain a statement of 
 all the essential ingredients which together constitute the offence 
 with which an accused person is charged, and any omission of 
 any such essential ingredient renders an indictment or a count 
 ineffectual, as no verdict and judgment can be founded on it, con- 
 sequently such omission renders the indictment or count null and 
 void. A formal defect or an imperfect averment in an indict- 
 ment or in a count may be corrected by the Court when an objec- 
 tion is raised, but matters of substance cannot be amended, and
 
 136 DEFECTS AND OBJECTIONS. 
 
 essential allegations which have been entirely omitted cannot be 
 added by the Court. WURTELE, J., at p. 503, in R, v. Weir (No. 
 5), 3 C. C. O. 499. 
 
 The informant, having with him a collie dog, was passing the 
 house of the accused, when the accused and his son claimed the 
 dog as theirs, and took possession of it. The informant went to 
 a magistrate and stated the facts of the case to him, and the 
 magistrate drew an information stating that the accused did on 
 that day "unlawfully have and keep in his possession and take 
 away a black collie dog . . . the property of the complain- 
 ant," which was sworn to by the informant, and upon it the magis- 
 trate issued a search warrant and delivered it to a constable who 
 took the dog out of possession of the accused. The constable then 
 laid an information against the accused charging that he "un- 
 lawfully did have and keep in his possession a black collie dog, 
 the property of W. H. W." 
 
 Summons was issued and both parties appeared before the 
 magistrate, with their counsel and witnesses. The counsel for 
 the accused objected to the information and summons for that 
 they did not charge the accused with any offence, whereupon, at 
 the request of the informant and his counsel, the information was 
 amended by inserting after the words "unlawfully did" the 
 words "steal and take away and." After hearing witnesses and 
 the parties, the magistrate dismissed the charge. The accused 
 brought an action against the informant for malicious prosecu- 
 tion ; at the trial, the Judge withdrew the case from the jury and 
 entered a non-suit upon the ground that reasonable and probable 
 cause had been shewn. On appeal, the Divisional Court set aside 
 the judgment and granted a new trial. " The defendant (inform- 
 ant) having merely stated the facts of the case to the magistrate 
 and having^ as it is admitted, stated' them fairly, is not liable in 
 damages for the erroneous view of the magistrate that he had 
 jurisdiction to issue a search warrant, nor for the subsequent 
 action of the magistrate in summoning the plaintiff before ham 
 in order, apparently, to dispose of the question as to the property 
 in the dog. But, when the proceedings began before the magis- 
 trate, the plaintiffs counsel pointed out that no criminal offence 
 was charged, and that the magistrate had, therefore, no jurisdic- 
 tion; there is evidence that the defendant assented to the altera- 
 tion in the information which then distinctly charged the plaintiff 
 with the crime of theft and to the prosecution of the plaintiff on 
 that charge .. . In my opinion, the learned Judge should
 
 DEFECTS AND OBJECTIONS. 137 
 
 have left the case to the jury, telling them that, if they found 
 that the defendant had authorized the charge of theft, and if he 
 honestly believed, at the time of the proceedings before the magis- 
 trate when the information was amended, that the plaintiff had 
 stolen his dog, they should find for the defendant, otherwise they 
 should find for the plaintiff." STREET, J., at pp. 62, 63, in Pring 
 v. Wyatt, (1903) 7 C. C. C. 60. 
 
 An information charging that the plaintiff did " abstract from 
 the table in the house of John Evans a paper being a valuable 
 security for money," does not charge an indictable offence. Smith 
 v. Evans, 13 0. P. 60. 
 
 An information that " the said Ellen Kennedy has the key of 
 a house in her possession, the property of the complainant," con- 
 tains nothing which by reasonable intendment can be construed 
 as charging a criminal offence. Lawrenson v. Hill, 10 Ir. C. L. 
 E. 177. See, also, Re Chitnita, 22 C. C. 0. 344. 
 
 An information which stated that A. B. had neglected 1 to re- 
 turn a gun which had been lent to him, and for which he had been 
 repeatedly asked, was not construed as charging criminality. Mc- 
 Donald v. Bulwer, 11 L. T. 27. 
 
 An information charging that the plaintiff " came to my house 
 and sold me a promissory note for the amount of ninety dollars, 
 purporting to be made against J. M. in favour of F. A., and I 
 find out the said note to be a forgery," sufficiently imports that 
 the plaintiff had uttered the forged note knowing it to be forged, 
 to give the magistrate jurisdiction to issue a warrant of arrest. 
 Anderson v. Wilson, 25 0. E. 91. 
 
 Every indictment must be framed with certainty, so as to 
 clearly identify the accusation, and, as a general rule, the name 
 of the person against whom an offence has been committed should 
 be given ajid any property which has been the subject of an offence 
 should be described. But in certain cases a crime might go un- 
 punished if it should be impossible to give the name of the party 
 against whom the crime has been committed, and, in such cases, it 
 is sufficient, as an exception to the general rule, for the grand jury 
 to state that it has been committed against a person to the jurors 
 unknown. ... In the present case, the indictment is conse- 
 quently valid, as it was sufficient to allege that the prisoner at- 
 tempted to steal from the person of an unknown person. WUR- 
 TELE, J., at pp. 91, 92, in E. v. Taylor, (1895) 5 C. C. C. 89.
 
 138 DEFECTS AND OBJECTIONS. 
 
 Both by common law and under art. 64 (now sec. 72) of 
 the Criminal Code, every attempt to commit an indictable offence 
 is an indictable offence and the indictment sets out clearly an 
 attempt to steal. Ibid., p. 93. 
 
 An indictment should describe the offence charged with such 
 particularity as will inform the accused of the specific acts for 
 which he is called upon to answer. The indictment merely staled 
 the offence in the language of the section of the Code, and did 
 not set out the particular facts constituting the offence and was 
 quashed. R. v. Beckwith, (1903) 7 C. 0. C. 450.
 
 SUMMONS AND WARRANT OF ARREST. 139 
 
 CHAPTER VI. 
 
 SUMMONS AND WARRANT OP ARREST. 
 
 Indictable Offences and Summary Convictions. 
 
 653. Evqry justice may issue a warrant or summons as hereinafter 
 mentioned to compel the attendance of an accused person before him, for 
 the purpose of preliminary inquiry in any of the following cases : 
 
 (a) If such person is accused of having committed in any place what- 
 ever an indictable offence triable in the province in which such jus*- 
 tice resides, and is, or is suspected to be, within the limits over 
 which such justice has jurisdiction or resides or is suspected to 
 reside within such limits ; 
 
 (b) If such person, wherever he may be, is accused of having com- 
 mitted an indictable offence within such limits; 
 
 (c) If such person is alleged to have anywhere unlawfully received 
 property which was unlawfully obtained within such limits ; 
 
 (d) If such person lias in his possession, within such limits, any 
 stolen property. 
 
 Under this section of the Code, we have to deal with sum- 
 monses or warrants issued for the purpose of preliminary inquiry 
 in indictable offences. And, bj sec. 711 of the Code, it is provided 
 that the provisions of this part (Part XIII.) and' of Part XIV. 
 ({ relating to compelling the appearance of the accused before the 
 justices receiving an information for an indictable offence and the 
 provisions respecting the attendance of witnesses on a preliminary 
 inquiry and the taking of evidence thereon, shall, so far as the 
 samq are applicable, except as varied by the sections immediately 
 to follow, apply to any hearing under the provisions of this Part 
 (XV.). Provided that, whenever a warrant is issued in the first 
 instance against a person charged with an offence punishable under 
 the provisions of this Part, the justice issuing it shall furnish a 
 copy or copies thereof, and cause a copy to be served on the person 
 arrested at the time of such arrest." 
 
 We will, therefore, in this chapter consider generally the issu- 
 ing of warrants or summonses under both parts of the Code and 
 for all offences: 
 
 The distinction between indictable offences and those dealt 
 with under the Summary Conviction Clauses, Part XV., has been 
 referred to previously as defined by sec. 28 of ch. 1, E. S. C., 
 1906, " The Interpretation Act." 
 
 Under sec. 653 of the Code, it is provided that the justice may 
 issue his warrant or summons to compel the attendance of the 
 accused person before him :
 
 140 ISSUE OF WARRANTS OF ARREST. 
 
 (1) If the indictable offence, although committed "in any 
 place whatever/' is triable in the province in which the justice 
 resides, and if such person is or is suspected to be, or resides or 
 is suspected to reside within the limits over which the justice has 
 jurisdiction. It, therefore, makes no difference where the offence 
 was committed, so long as it is within the province in which the 
 justice presides and is triable there. His jurisdiction does not 
 extend outside the province for which he has been commissioned 
 a justice. But the accused must be, or suspected to be, within the 
 limits, or reside, or suspected to reside, within the limits over 
 which the justice issuing the warrant has jurisdiction at the time 
 the same is issued. 
 
 There is no jurisdiction to issue a warrant upon an informa- 
 tion which does not state either the place where the offence was 
 committed or that the offence is indictable and triable in the pro- 
 vince. Campbell v. Walsh, 18 C. C. 0. 304. 
 
 An accused person brought before a justice, charged with an 
 offence committed out of the limits of the justice, is dealt with 
 under the provisions of sec. 665 of the C'ode. The justice, after 
 hearing both sides, may order the accused at any stage of the 
 inquiry to be taken by a constable before some justice having 
 jurisdiction in the place where the offence was committed. This, 
 however, is permissive only. See R. v. Burke, (1900) 5 C. C. C. 
 29. The justice need not exercise this jurisdiction unless he 
 wishes to, but may proceed to hold and complete the preliminary 
 inquiry. 
 
 (2) The second provision of sec. 653, (b), provides for the 
 apprehension of accused persons wherever they may be, who have 
 committed an indictable offence " within " the limits over which 
 the justice has jurisdiction. If such person against whom any 
 warrant has been issued cannot be found within the jurisdiction 
 of the justice who issued the warrant, then such warrant may 
 be endorsed by any justice in Canada within whose jurisdiction 
 the accused is or is suspected to be. 
 
 After endorsement, the warrant can be executed and the person 
 apprehended whenever found within the territorial division where 
 the warrant has been so endorsed. See sec. 662 as to endorse- 
 ment of warrants and requirements respecting the same. 
 
 By the amendments of 1909, a further provision has been made 
 by adding sub-sec. (4) to sec. 662, providing for the apprehension 
 uf a person, under a backed warrant, who is in any prison within 
 the province where the warrant is backed.
 
 ISSUE OF WARRANTS OF ARREST. 141 
 
 By sec. 629A, added by the amendment of 1909 to the Code, 
 a search warrant may now be backed and executed outside the 
 jurisdiction of the justice who issued the same. 
 
 (3) Sub-sec, (c) covers the case of receiving stolen property, 
 no matter where unlawfully received, if such property has been 
 unlawfully obtained within the limits over which the justice has 
 jurisdiction. 
 
 (4) If such person has any stolen property in his possession 
 while residing or being within such limits. 
 
 The issuing of a summons, so as to notify the person accused 
 of the accusation against him, is founded upon the rules of natural 
 justice, one of which is that the accused should have an oppor- 
 tunity of being heard before he is condemned. R. v. Simpson, 10 
 Mod. 379; R. v. Dyer, 1 Salk. 181. 
 
 " The laws of God and man both give a party an opportunity 
 to make his defence, if he has any. I remember to have heard 
 it observed by a very learned man on one occasion that even God 
 himself did not pass sentence upon Adam before he was called 
 upon to make his defence." Per FORTESCUE, J., in R. v. Cam- 
 bridge, 1 Stra. 557, at p. 567. 
 
 No proposition can be more clearly established " than that a 
 man cannot incur loss of liberty or property for an offence by a 
 judicial proceeding until he has had a fair opportunity of answer- 
 ing the charge against him unless, indeed, the legislature has ex- 
 pressly or impliedly given an authority to act without that neces- 
 sary preliminary." PARKE, B., at p. 171, in Bonaker v. Evans, 
 16 Q. B. 162. 
 
 A magistrate has discretion to refuse the issue of a summons 
 after a prima facie case is made out, where, if the offence were 
 proved, he would dismiss the summons at the hearing. R. v. Bros, 
 85 L. T. 581 ; R. v. Kennedy, 86 L. T. 753. 
 
 Upon a sufficient information properly laid and where there 
 is no reasonable doubt of their jurisdiction, the magistrates are 
 bound to hear and determine whether they should not issue a sum- 
 mons or a warrant, and proceed to a hearing, and if they refuse 
 to do so, they will be compelled by rule or mandamus. R. v. Benn, 
 6 T. R. 198. 
 
 If the information be for a penalty or the non-payment of 
 money, the justice should in general issue a summons in the first 
 instance before he grants a warrant, unless it is probable that the 
 party will abscond as soon as he hears of the information, or the
 
 142 ISSUE OF SUMMONS BY JUSTICES. 
 
 object of the prosecution will be otherwise defeated. R. v. J. J. 
 Stafford, 3 A. & E. 425. 
 
 The summons should be directed to the party against whom 
 the charge is laid, and should be under the hand and seal of the 
 justice himself who issued it. 
 
 The intention of the summons being to afford the person 
 accused an opportunity of making his defence, it should contain 
 the substance of the charge and fix an hour, day and place for his 
 appearance, allowing a sufficient time for the attendance of him- 
 self and his witnesses. See Re Grouse (No. 2), 21 C. C. C., per 
 GRAHAM, E.J., at p. 246. 
 
 A summons to appear immediately upon the receipt thereof 
 has been thought insufficient in one case. R. v. MalUnson, 2 Burr. 
 681. 
 
 In another, an objection made to the summons that it was to 
 appear on the same day was only removed by the fact of the de- 
 fendant having actually appeared, and so waived any irregularity 
 in the notice. R. v. Johnson, 1 Str. 261. 
 
 It is equally necessary that it should be to appear at a place 
 certain, otherwise the party commits no default by not appear- 
 ing, and the magistrate cannot proceed in the defendant's absence 
 upon a summons defective in these particulars without making 
 himself liable to an action. R. v. Allington, 1 Stra. 678. 
 
 The summons should require the party to appear before the 
 same justice or justices who received the information and issued 
 the summons, or " before such other justice or justices of the peace 
 for the same county as shall then be there, to answer to the said 
 charge and to be further dealt with according to law." See sec. 
 658 of the Code and form 5. 
 
 If a summons reciting an information as laid too late is served 
 upon a party, he is not bound to appear upon it, and the justice 
 has no jurisdiction to proceed upon it. R. v. Le Blanc, 21 C. C. 
 C. 221. 
 
 RECEIVING INFORMATION AND COMPLAINT. 
 
 654. Any one who. upon reasonable or probable grounds, believes that 
 any person has committed an indictable offence under this Act may make 
 a complaint or lay an information in writing and under oath before any 
 magistrate or justice having jurisdiction to issue a warrant or summons 
 against such accused person in respect of such offence. 
 
 2. Such complaint or information may be in form 3, or to the like 
 effect.
 
 RECEIVING AN INFORMATION OR COMPLAINT. 143 
 
 655. (As enacted in 1913, c. 13, s. 24). Upon receiving any such 
 complaint or information the justice shall hear and consider the allega- 
 tions of the complainant and, if the justice considers it desirable or 
 necessary, the evidence of any witness or witnesses ; and if the justice is 
 of opinion that a case for so doing is made out, he shall issue a summons, 
 or warrant, as the case may be, in manner hereinafter provided. 
 
 2. Such justice shall not refuse to issue such summons or warrant 
 only because the alleged offence is one for which an offender may be 
 arrested without warrant. 
 
 3. The justice shall, in connection with such hearing, have the same 
 power of procuring the attendance of witnesses and of compelling them to 
 testify as under Part XIV. 
 
 4. The evidence of witnesses, if any, at such hearing shall be given 
 upon oath, and the evidence of each witness shall be taken down in writing 
 in the form of a deposition and, subject to the provisions of section 683, 
 which, so far as applicable, shall apply to such hearing, shall be read "over 
 to and signed by the witness and signed by the justice." 
 
 Sub-section 1 of section 655, as now worded, does away with 
 all doubt as to whether it was not necessary, under the enactment 
 as "amended in 1909, for the magistrate to take the sworn state- 
 ment of the witness or witnesses, in addition to that of the in- 
 formant, before he could lawfully issue a warrant. See Ex parte 
 Arckamboult, lb U. I). U. 433; H. v. Johnston. 17 C. C. C. 369'; 
 &V! Merger, 1H 0. li. C. 363, and R. v. Mitchell, 19 C. C. C. 113. 
 
 The justice is not bound to have witnesses brought before him. 
 Where there is an absolute positive statement by the informer at 
 the time of the laying of the information, on oath, before the 
 magistrate issuing the warrant, of the sale or keeping for sale of 
 the liquor, that is sufficient. Per HANNINGTON, J., at p. 276, in 
 Ex parte Madden, (1908) 13 C. C. C. 273. 
 
 A sufficient information by a competent person relating tp_a 
 matter within the magistrate's cognizance gives him jurisdiction 
 irrespective of the truth ot the facts contained in it. His 
 authority to act does noi depend upon me veracity of the state- 
 ment, or upon the evidence being sufficient to establish the corpus 
 delecti brougnt under investigation, and he will be protected al- 
 fTiough the information mayjlisclose no legal evidence, or purport 
 to^ be founded upon inadmissible evidence, or upon mixed allega- 
 tions of law and faci_ Cave v. Mountain, 1 M. & G. 257, 264. 
 
 As, on the one hand, the information is not invalidated by 
 reason of the statements being false, so, on the other, it cannot 
 be rendered valid by the testimony offered in support of it, for 
 the office of the evidence is to prove, not to supply, a legal charge. 
 R. v. Wheatman, 1 Doug. 345; Wiles v. Cooper, 3 A. & E. 524, at 
 p. 531., Paley, 8th ed., p. 76. 
 
 The magistrate is not bound to issue process under sec. 655. 
 It is a matter entirely in his discretion and' he is not bound to
 
 144 FEE-REQUISITES TO ISSUE OF WARRANTS. 
 
 state his reason for refusing; he has simply to express his opinion, 
 after considering the complaint. 
 
 A warrant should never issue, except when the charge is of a 
 serious nature, when a summons will be equally effective. O'Brien 
 v. Brcibner, 78 L. T. 409. 
 
 It is no objection to a conviction that the complainant was not 
 sworn till after the information to obtain a warrant was filled up 
 and written out by the magistrate, nor does it make any difference 
 that the information was laid by the constable, who afterwards 
 arrested the defendant. Ex p. Balser, 27 N. B. E. 40. 
 
 Where a magistrate has refused a summons on the ground that 
 the information does not disclose an indictable offence, the High 
 Court of Justice has no jurisdiction to review his decision either 
 as to law or as to fact, and, therefore, in such a case a rule under 
 11 & 12 Vic., ch. 44, sec. 5, calling upon the magistrate to shew 
 cause why he should not hear and determine the application for 
 a summons will not be granted. Ex parte Lewis, 21 Q. B. D. 191. 
 
 Where the complaint is laid upon information and belief and 
 the causes of suspicion are not disclosed therein, the justice should 
 examine the complainant and his witnesses, ex parte under oatn, 
 touching the grounds of suspicion ; and the justice should grant 
 a warrant ot arrest^ only m case he himself entertains tiie^ : uTc 
 suspicion as a result of such investigation. Ex parte Cojfon, 
 (1905) 11 C. C. 0. 48, and see Ex parte Boyce, 24 N. B. E. 347; 
 R. v. McDonald, 24 N. S. E. 44. 
 
 SUMMONS. 
 
 658. Every summons issued by a justice under this Act shall be 
 directed to the accused, and shall require him to appear at a time and 
 place to be therein mentioned. 
 
 2. Such summons may be in form 5, or to the like effect. 
 
 3. No summons shall be signed in blank. 
 
 4. Every such summons shall be served by a constable or other peace 
 officer upon the person to whom it is directed, either by delivering it to 
 him personally or, if such person cannot conveniently be met with, by 
 leaving it for him at his last or most usual place of abode with some 
 inmate thereof apparently not under sixteen years of age. 
 
 5. The service of any such summons may be proved by the oral testi- 
 mony of the person affecting the same or by the affidavit of such person 
 purporting to be made before a justice. 
 
 Only ministerial acts, and not acts which are judicial, could be 
 legally performed in Court on a Sunday under the common law. 
 K. v. Winsor, 10 Cox C. C. 276, at pp. 305, 322.
 
 ISSUE OF WARRANTS ON SUNDAY, SERVICE OF SUMMONS. 145 
 
 By sub-sec. 3 of sec. 661 post, a warrant authorized by this 
 Act may be issued and executed on a Sunday, or statutory holi- 
 day. 
 
 There is no authorization for the issue of a summons on a 
 Sunday, or statutory holiday. 
 
 Under 29 Car. 2, ch. 7, sec. 6, a person against whom a war- 
 rant had been issued for an indictable offence might be arrested 
 on a Sunday, or statutory holiday. See Rawlins v. Ellis, 16 M. 
 & W. 172. 
 
 If a party has wrongfully escaped he may be retaken on a 
 Sunday without a warrant. Atkinson v. Jameson, 5 T. E. 25. 
 
 But bail cannot take the defendant on a Sunday in order to 
 surrender him. Brookes v. Warren, 2 Bla. Rep. 1273. 
 
 A warrant of arrest to answer a charge for an offence punish- 
 able on summary conviction may now be issued and executed on 
 Sunday. The magistrate on Sunday also accepted bail for the de- 
 fendant's appearance on another day, and the defendant appeared 
 accordingly. Held, the magistrate had jurisdiction to proceed 
 with the case whether taking bail was invalid or not. Re McGil- 
 livray, (1907) 13 C. C. C. 113. And see Ex parte Garland, 8 C. 
 C. C. 385; and Ex parte Cormier, (1907) 12 C. C. C. 339, and 
 R. V. Cavelier, (1896) 1 C. C. C. 134. 
 
 No summons shall be signed in blank. This means that the 
 summons must be properly filled up and be complete in every re- 
 spect before it is signed by the justice. 
 
 SERVICE OF THE SUMMONS. 
 
 The service of the summons must, if possible, be personal; if 
 the constable cannot serve, or find the person to whom the sum- 
 mons is directed, he can then effect service by leaving it for him 
 at his last, or most usual place of abode with some inmate thereof 
 apparently not under sixteen years of age. 
 
 Where a summons was served upon a wife who carried on 
 business for her husband in his absence, the service was held good 
 service upon the husband although served upon his wife at his 
 most usual place of abode. R. v. McAuley, 14 0. E. 643. 
 
 A summons may be served outside as well as within the terri- 
 torial limits of the justice by whom it is issued : Ex parte O'Eegan, 
 (1909) 16 C. C. C. 110. 
 
 C.C.P. 10
 
 146 SERVICE OF THE SUMMONS. 
 
 When the defendant was in the United States from before the 
 date of the information until after the hearing, the service on the 
 wife was held insufficient. Ex p. Fleming, 14 C. L. T. Occ. N. 
 106. 
 
 When the husband was out of the province and did not re- 
 turn till after the hearing and service was made on his wife at 
 his usual place of abode during such absence, held not good ser- 
 vice. Conviction quashed. Ex p. Donovan, 32 N. B. E. 374, 
 (1894) 3 C. C. C. 286, and see Ex parte Simpson, 37 C. L. J. 
 510. 
 
 The words " last or most usual place of abode " mean present' 
 place of abode if the part}' has any, and the last which he had if 
 he had ceased to have any. Ex p. Jones, 19 L. J. M. C. 151, 1 L. 
 M. & P. 357. R. v. Eigham, 7 E. & B. 557; R. v. Farmer, [1892] 
 1 Q. B. 637. 
 
 Place of business is in general a place of abode within statutes 
 providing for service of notice. Mason v. Bibby, 33 L. J. M. C. 
 105 ; Flower v. Allen, 2 H. & C. 688. 
 
 If the service be otherwise than personal the nature of the 
 summons must be explained to the person with whom it is left. 
 R. v. Smith, L. E. 10 Q. B. 604, per QUAIN, J. 
 
 Leaving a copy at the house by delivering the same to a per- 
 son on the premises apparently residing there, as a servant, will be 
 sufficient. Ibid. Such person must apparently be not under six- 
 teen years of age. 
 
 Where a copy of a summons was left with an adult person at 
 the defendant's residence, and there was no proof before the magis- 
 trate that this adult person was an inmate of the defendant's last 
 or usual place of abode, or that any effort had been made to serve 
 the defendant personally with a copy of the summons, the Court 
 held that this service was insufficient and refused to admit evidence 
 to supplement the evidence given before the magistrate as to the 
 service. Conviction quashed. Re Barron, (1897) 4 C. C. C. 465. 
 
 Where substitutional service is relied upon there must be proof 
 that the defendant could not " be conveniently met with " and 
 that the person served was an inmate of the defendant's last, or 
 most usual place of abode, and that such person was apparently 
 of the age of sixteen, or upwards. Service on a hotel clerk at the 
 hotel of which the defendant was the proprietor, and in which he 
 usually resided, was held insufficient without proof that the hotel 
 clerk made the hotel his place of residence. Ex parte Wallace, 19 
 C. L. T. Occ. N. 406.
 
 PROOF OF SERVICE OF THE SUMMONS. 147 
 
 In a similar case the service had been made on a 'brother of 
 the defendant at the defendant's hotel upon failure to find the de- 
 fendant himself, and proof was made that the brother served 
 " stayed at the hotel most of the time." Held, insufficient to shew 
 that he was an " inmate " of the hotel, and the conviction made 
 in defendant's absence was set aside. R. v. Franey, 16 C. C. C. 
 441. 
 
 Service on a person proved to be sixteen and over and to be 
 employed at the defendant's residence as a domestic servant, held 
 sufficient. R. v. Chandler, 14 East. 267. 
 
 When it is not shewn under oath by affidavit, or oral testimony, 
 that the defendant could not be conveniently met with so as to 
 effect personal service, the magistrate has no jurisdiction to pro- 
 ceed upon substitutional service. R. v. Carrigan, 17 0. L. T. Occ. 
 N. 224. 
 
 It as for the justices to decide the question of sufficiency of ser- 
 vice, and the Court will not interfere with their decision unless it 
 clearly appears that there was, in fact, no service, or that the 
 defendant was not allowed the interval fixed by the particular 
 statute between the service and the time limited for appearance, 
 or that the justices have mistaken the law as to the kind of service 
 required, and have therefore declined to entertain the matter. In 
 re Williams, 21 L. J. M. C. 46. See Ex parte Hopwood, 15 Q. B. 
 121: Robinson v. Lenaghan, 2 Exch. 333; R. v. Evans, 19 L. J. 
 M. C. 151 ; Mitchell v. Foster, 12 A. & E. 472 ; R. v. Goodrich, 19 
 L. J. Q. B. 413 ; Mason v. Bibby, 33 L. J. M. 0. 105. 
 
 In Re Williams, 21 L. J. M. C. 46, ERLE, J., said, " as a general 
 rule service at nine o'clock in the morning of one day to appear at 
 eleven in the morning of the next day was a reasonable service 
 although the defendant was not at home when the summons was 
 left, and did not return till eleven at night." 
 
 The summons should be served a reasonable time before the 
 day appointed in it for the defendant's appearance. Two days, or 
 more, would generally be deemed reasonable. 
 
 As to what is a reasonable time, see R. v. Dibblee, 32 N. B. E. 
 242, and Ex parte Hogan, 32 N". B. R. 247, also R. v. Smith, L. 
 R. 10 Q. B. 604. 
 
 An affidavit of service of a copy in the usual form shewing that 
 a copy of the summons was delivered and left with the defendant's 
 wife at his place of residence on a certain day, will be sufficient. 
 R. v. McAulay, 14 0. R. 643, and see Ex parte Quirk, 33 C. L. J. 
 405.
 
 148 PROCEEDING IN ABSENCE OF DEFENDANT. 
 
 The affidavit of service of a summons may be taken before any 
 justice of the peace. A commissioner for taking affidavits has no 
 power to take the affidavit of service of a summons. R. v. Golding, 
 15 N. B. R. 385. 
 
 The usual mode, of proving service of a summons is for the 
 constable who served the copy to make oath to that effect before 
 the justice who is presiding in the Court on the day the defendant 
 is summoned to appear, but such proof can be made by affidavit 
 sworn before any justice of the peace residing within the limits. 
 
 If the constable who serves the summons is the prosecutor in 
 the case, the magistrate will have no jurisdiction unless the de- 
 fendant appears: Re Kennedy, 17 C. 0. C. 342. 
 
 In R. v. Smith, L. R. 10 Q. B. 604, COCKBURN, C.J., said: 
 " To convict an accused person unheard is a dangerous exercise of 
 power, there being an alternative mode of procedure by issuing a 
 warrant to apprehend him. Justices ought to be very cautious 
 how they proceed in the absence of a defendant, unless they have 
 strong grounds for believing that the summons has reached him 
 and that he is wilfully disobeying it." In this case the defendant 
 was a fisherman and went to sea in pursuit of his calling on the 
 9th March, and on the same day a summons for assault was taken 
 out against him, requiring him to appear to answer the charge 
 upon the 12th. On that day, it having been found that a summons 
 was served on the defendant on the 10th, by leaving it with his 
 mother at his usual place of abode, the justices convicted him in his 
 absence. Before the 9th April he returned from sea and was 
 arrested under the conviction. The Court held that there was no 
 evidence before the justices that a reasonable time had elapsed 
 between the time of the service of the summons and the day for 
 the hearing the summons, and the justices had therefore no juris- 
 diction to convict. 
 
 If a summons requiring the defendant to appear on the same 
 day is served, an adjournment should be granted to the defendant 
 appearing, if any ground for it is shewn. R. v. Lang ford, 15 0. 
 R. 52. 
 
 When a statute fixed no period for delay between the service 
 and the return of the summons, it was held that a service on the 
 defendant at his domicile twenty miles from the place where he 
 was by the writ summoned to appear on the following day at 
 10 o'clock in the forenoon, the service being effected about 3 
 o'clock in the afternoon of the day preceding, was not reasonable
 
 ISSUE AND SERVICE OF SUMMONS. 149 
 
 and the plaintiff could not legally proceed. Ex p. Church, 14 L. 
 0. K. 318. 
 
 Where the constable found the door of the defendant's house 
 fastened and he spoke to the defendant through a closed window 
 explaining the nature of the process, and then placed a copy of 
 the summons under the door informing the defendant of this fact, 
 after this he returned to the window and shewed the original 
 summons to the defendant who said' " that will do." Held, the ser- 
 vice was sufficient. Ex p. Campbell, 26 N. B. E. 590. 
 
 In effecting service of a summons under this section of the 
 Code the constable is performing a duty of his office and any 
 assault upon him will render the offender liable for assaulting 
 a constable in the execution of his duty. See section 296 of the 
 Code. 
 
 A summons may be issued upon an information before a jus- 
 tice of the peace for an offence punishable on summary conviction, 
 although the information has not been sworn; but, before a war- 
 rant can issue, there must be an information in writing and 
 under oath. R. v. McDonald, (1S96) 30. C. C. 287. 
 
 A summons was issued on the 20th June, 1905, for the de- 
 fendant's appearance on 21st June at 10 o'clock in the fore- 
 noon, at the Town Court Room, Truro. The defendant was per- 
 sonally served on the 20th in the streets of Truro, where he car- 
 ried on business, with a copy of the summons. The defendant 
 complained that he was not served a reasonable time before the 
 time appointed for his appearance. He did not appear at the 
 time appointed and the magistrate proceeded in his absence, and 
 made a conviction against the defendant. On a case stated by the 
 magistrate the question of sufficiency of notice was alone discus- 
 sed. Held, the service was reasonable. R. v. Craig, (1905) 10 
 C. C. C. 249. 
 
 What the defendant in the above case should have done was 
 to have appeared personally, or by counsel, and asked for an ad- 
 journment upon the ground that he had not had time to prepare 
 his defence. 
 
 When the day of the week and the day of the month men- 
 tioned in the return day in a summons issued by a magistrate 
 do not conform, the summons is not invalid as for an impossible 
 day, but the day of the month governs. Ex parte Tompkins, 
 (1906) 12 C. C. C. 552.
 
 150 SUMMONS FOR A CORPORATION. 
 
 It was held by a Divisional Court, FALCONBRIDGE and STREET, 
 JJ"., that the procedure of the Criminal Code as to summary 
 convictions applied as well to corporations as to natural persons. 
 Notice of a summons by justices under the summary conviction 
 clauses of the Code may be given in a manner similar to a notice 
 of indictment under sec. 918 of the Code. R. v. Toronto Railway 
 Co., (1898) 2 C. C. C. 471. 
 
 On the other hand the Supreme Court of New Brunswick has 
 held that clauses of the Criminal Code relating to summary con- 
 victions do not apply to corporations. Ex parte Woodstock Elec- 
 tric Light Co., (1898) 4 C. C. C. 107. 
 
 The matter is now set at rest by the amendments to the Code 
 in 1909 by inserting immediately after sec. 720, section 720A, 
 which provides that when the, defendant is a corporation the sum- 
 mons may be served upon the mayor, or chief officer of such cor- 
 poration, or upon the clerk or secretary or the like officer thereof, 
 and may be in the same form as if the defendant were a natural 
 person. (2) The corporation in such case shall appear by attor- 
 ney, and if it does not appear the justice shall proceed as in other 
 cases. 
 
 It is to be noted that these provisions as to corporations apply 
 only to offences punishable under the summary conviction sec- 
 tions of the Code, Part XV. 
 
 Until recently it was thought that a magistrate has no sum- 
 mary jurisdiction to adjudicate upon, or to hold a preliminary 
 inquiry respecting, an indictable offence against a corporation, and 
 that the properproceeding in such cases is by indictment un3er^ 
 BecT916 of the Code: R. v. T. Eaton Co. Ltd., (1898) 2 C. C. CT 
 252^_Re (Jhapman and City of London, 19 0. B. 33. and R. v. 
 City of London, 32 0. R. 326, in all which cases prohibition was 
 granted, against .Police Court proceedings by way of preliminary in- 
 quiry. sut in tie Schofieicl and City of Toronto, 22 C. C. C. 93, 
 Meredith, O.J., refused leave to prefer an indictment against the^ 
 city for a nuisance on the ground that a preliminary inquiry be- 
 fore a magistrate should first take place. 
 
 As to indicting corporations, see Union Colliery Co. v. Regina, 
 (1900) 4 C. C. C. 400, and 31 S. C. E, 81, and R. v. Great West 
 Laundry Co., (1900) 3 C. C. C. 514. 
 
 To force on the trial of a case without giving the defendant 
 time to prepare his defence is contrary to natural justice and the 
 conviction will be set aside. R. v. Eli, 10 0. R. 727, and see R. 
 V. McKenzie, 23 N. S. R, 6, at p. 23.
 
 WAIVER OF IRREGULARITIES IN SUMMONS. 151 
 
 WAIVER OP IRREGULARITY. 
 
 If the defendant actually appears and pleads there is no 
 longer any question upon the sufficiency or regularity of the 
 summons, or its service. Taylor v. Clemson, 11 Cl. & Fin. 610, 
 642; R. v. Preston, 12 Q. B. 825; E. v. Ward, 3 Cox 279; R. v. 
 Holyoke, 21 C. C. C. 422. 
 
 Where what is assumed to be done is a nullity there is noth- 
 ing that can be waived 1 , but where there is an irregularity it can 
 be waived. Boyle v. Backer, 39 Ch. Div. 249 ; Fry v. Moore, 23 Q. 
 B. D. 395 ; Whiffen v. JJ. Mailing, [1892] 1 Q. B. 362. 
 
 A summons is not avoided by reason of the justice who signed 
 the same dying or ceasing to hold office. Criminal proceedings 
 do not lapse by the death of the informant. R. v. Truelove, 5 Q. 
 B. D. 336. 
 
 Although the defendant has failed to appear upon the sum- 
 mons in a summary conviction offence, the information may be 
 amended to correct the date of the offence, but not to charge 
 a different offence. Ex parte Tompkins, ubi supra; Ex parte 
 Doherty, 1 C. C. C. 84, distinguished. 
 
 " A flood 1 of authorities might be cited in support of the pro- J 
 position that no process is at all necessary when, the accused be- (' 
 ing bodily before the justices, the charge is made in his presence I 
 and he appears and answers it." Hawkins, J., in R. v. Hughes, 4 / 
 Q. B. D. 614, at p. 626. 
 
 " But, whether the summons was good or bad, I imagine it is 
 now law sufficiently well established that a person who appears 
 in answer to a summons and takes his trial and chances of ac- 
 quittal, is considered as having waived any objection to the sum- 
 mons. . . . The defendant having appeared to the summons, 
 he was exactly in the same position as if he had been most pro- 
 perly, legally and technically summoned without the slightest 
 irregularity.' 5 MORRIS, C.J., in R. v. JJ. of Carrick-on-Suir, 
 16 Cox 571. 
 
 Where the justices have jurisdiction to hear the information 
 and no objection is taken at the time to any informality in the 
 form of the information, the justices have jurisdiction to convict. 
 R. v. Bradley, 63 L. J. M. C. 183. 
 
 The non-attendance of the party does not authorize a judg- 
 ment without a due examination of the facts upon oath with the 
 same formality as if he were present and made defence.
 
 152 WAIVER OF IRREGULARITIES IN SUMMONS. 
 
 It appears to be doubtful whether it is competent to justices 
 to convict upon a plea of guilty by a solicitor in the absence of 
 the defendant. R. v. Aves, 24 L. T. R. 64. 
 
 But in E. v. McDonald, 21 C. O. C. 229, it was held that coun- 
 sel duly authorized may appear and enter a plea of guilty for an 
 absent defendant in a summary conviction matter. 
 
 Where a special Act provided that in all prosecutions under 
 it particulars of the offence of which the seller is accused shall be 
 stated in the summons, the omission of such particulars from 
 the summons does not deprive the justices of jurisdiction, but 
 merely entitles the defendant to an adjournment of the hearing 
 in the event of the justices being satisfied that he is prejudiced by 
 such omission, Neal v. Devenish, [1894] 1 Q. B. 544. 
 
 If the defendant appears, any irregularity in the summons, or 
 even the want of a summons altogether, becomes immaterial " un- 
 less the statute creating the offence imposes the necessity of some 
 such step." R. v. Shaw, 34 L. J. M. C. 169 ; R. v. Stone, 1 East 
 649. 
 
 Where a defendant, having appeared in answer to a summons 
 before justices, during the hearing of the case forcibly leaves the 
 Court, the justices may adjourn, and at the adjourned sitting, 
 if the defendant does not appear, may in his absence convict him 
 of the offence with the commission of which he was charged. 
 R. v. JJ. Carrick-on-Suir, 16 Cox 571. 
 
 But a defendant who has been summoned from without the 
 jurisdiction of the justices, for an offence that has taken place 
 also out of their jurisdiction, does not by his appearance on the 
 Bummons cure the defect of want of jurisdiction. Johnson v. 
 Oolam, L. R. 10 Q. B. 544, 44 L. J. M. C. 185. 
 
 An objection raised on a motion to quash the conviction that 
 \J the information was taken before only one justice of the peace 
 was overruled, it being held to have been waived by the defend- 
 ant's appearance. R. v. Clarice, 20 0. R. 642. 
 
 The defendant being present in Court, on a charge of drunken- 
 ness which was disposed of, was, without any summons having 
 been issued, charged with another offence, namely, selling liquor 
 without a license. The information was read over to him and he 
 pleaded not guilty and, evidence for the prosecution having been 
 given, he asked for and obtained an enlargement till the next 
 day, when, on his not appearing, he was convicted in his absence
 
 WAIVER OF IRREGULARITIES IN SUMMONS. 153 
 
 and fined $50 and costs. Held, that under these circumstances 
 the issuing of a summons was waived. R. v. OlarTce, 19 0. R. 601. 
 
 When the information was not sworn at the place and time 
 stated, the defendant's appearance and objection only on other 
 grounds was held to waive the defect. Ex parte Bonier, (1896) 
 2 C. C. C. 121; and see section 668 of the Code. 
 
 An irregular adjournment of summary proceedings before 
 a magistrate, or an adjournment beyond the time directed by the 
 statute, is waived by the accused afterwards appearing for trial 
 without taking objection thereto and adducing evidence. R. v. 
 Miller, (1909) 15 C. 0. C. 87, and see R. v. Hazen, 20 A. R. 633, 
 and R. v. Heffernan, 13 0. E. 616. 
 
 Unless dispensed with by statute or waived, there must be 
 some previous summons or notice to the party charged of the 
 hearing of the charge against him. R. V. Dyer, 6 Mod. 41 ; R. v. 
 University of Cambridge, 8 Mod. at p. 154 ; Harper v. Carr, 7 T. 
 R. 270; R. v. Benn, 6 T. R. 198. 
 
 This may be waived by appearing, pleading and defending. 
 But asking an adjournment for the purpose of procuring evi- 
 dence is not necessarily a waiver. R. V. Vrooman, (1886) 3 M. 
 R. 509. 
 
 Prohibition, will be granted against a justice to prevent his 
 proceeding under a second summons upon the same information 
 after the quashing on certiorari of a conviction for want of service 
 of the first summons, or of appearance thereunder, the information 
 having been sent with the conviction to the Cburt above and ir- 
 regularly returned to the magistrate afterwards. R. v. ZicJcrick, 
 (1897) 5 C. C. C. 380. 
 
 It is important that the constable serving the summons should 
 prove the service either orally or by affidavit, for, although the 
 accused may have been actually served, yet if he does not ap- 
 pear the magistrate would have no right either to issue a warrant, 
 or to proceed otherwise in the absence of the defendant without 
 proof that he was duly served. R. v. McEachern, 13 N. S. R. 
 321; see sec. 660 (5) of the Code. 
 
 Proof by a policeman that he served a copy of the summons on 
 the defendant personally, and that the defendant resided in the 
 town in which prosecution was begun, and process issued, is suffi- 
 cient to shew a service within the magistrate's jurisdiction. Moore 
 v. Sharley, 26 N. B. R. 7. 
 
 A magistrate has no jurisdiction to proceed in the absence 
 of the accused in a summary proceeding without evidence that
 
 154 NON-APPEARANCE OF ACCUSED. 
 
 the summons was served a reasonable time before the hearing. 
 Re O'Brien, (1905) 10 C. 0. C. 142. See R. v Craig, (1905) 
 10 C. 0. C. 249. 
 
 NON-APPEARANCE OF THE ACCUSED. 
 
 In case the service of the summons has been proved and the 
 accused does not appear, or when it appears the summons can- 
 not be served, a warrant in form 7 may issue. Section 660 (5) 
 of the Code. 
 
 The person charged with committing an indictable offence 
 must be before the justice either voluntarily, by summons, or 
 after being apprehended by warrant, before the justice can pro- 
 ceed to inquire into the matters charged against such person. 
 See sec. 668 of the Code. 
 
 The justice cannot proceed with a preliminary inquiry unless 
 the accused person is present at the hearing. By sec. 682 of the 
 Code the evidence of the witnesses for the prosecution "shall be 
 given upon oath, and in the presence of the accused, and the ac- 
 cused, his counsel or solicitor, shall be entitled to cross-examine 
 them." 
 
 " There never has been a time since the abolition of the Star 
 Chamber system of trial, when a person accused of an indictable 
 offence in an English Court has not been entitled to hear the evi- 
 dence brought against him, and to cross-examine the witnesses, 
 and no evasion, or variation, of that rule has ever been sanctioned 
 when brought before the attention of the Superior Court." Per 
 HALL, J., in R. v. Lepme, (1900) 4 C. C. C. 145, and see R. v. 
 Traynor, (1901) 4 C. C. C. 410, and R. v. Watts, 33 L. J. M. C. 
 63. 
 
 In respect to offences punishable on summary conviction the 
 procedure is different. In summary convictions, if the accused 
 does not appear at the time and place appointed by the summons, 
 and it appears to the satisfaction of the justice that the summons 
 was duly served a reasonable time before the time appointed for 
 appearance, such justice may proceed ex parte to hear and 
 determine the case in the absence of the defendant as fully and 
 effectually to all intents and purposes as if the defendant had 
 personally appeared. Or the justice, if he thinks fit, may issue 
 his warrant as provided in sees. 659 and 660, and adjourn the 
 hearing till the defendant is apprehended. See sec. 718 of the 
 Code.
 
 NON-APPEARANCE OF ACCUSED. 155 
 
 The authority of the magistrate to determine the case in the 
 absence of the defendant, in default of his appearance, must be 
 restricted to the particular charge in the original information. 
 Ex parte Doherty, (1894) 1 C. C. 0. 84. 
 
 The hearing of an offence punishable on summary conviction 
 may be adjourned from time to time although the accused be not 
 present, provided the adjournments are made in the presence and 
 hearing of his solicitor or agent. Proctor v. Parker, (1899) 3 
 C. C. C. 374. 
 
 A magistrate has no jurisdiction to issue a warrant of arrest 
 in the first instance under the summary conviction clauses of the 
 Code (Part XV.) upon an information pledging the informant's 
 suspicion and belief, but not stating the grounds therefor, with- 
 out first examining the informant or his witnesses as to the 
 grounds of suspicion. Ex parte Grundy, (1906) 12 C. C. C. 65. 
 
 Where this objection was taken on the hearing but overruled, 
 the conviction was quashed. Ibid. 
 
 Where the summons issued under the summary conviction pro- 
 cedure is for an offence different from that set out in the informa- 
 tion, the magistrate acquires no jurisdiction over the accused on 
 his failure to attend on the return of the summons, and a con- 
 viction made on default of appearance will be set aside. Sections 
 669 and 724 of the Code do not apply when jurisdiction has not 
 been properly acquired over the accused. Ex parte Melanson, 
 (1908) 13 C. C. C. 251. 
 
 WARRANT OF ARREST. 
 
 659. The warrant issued by a justice for the apprehension of the 
 person against whom an information or complaint has been laid as pro- 
 vided in Section six hundred and fifty-four may be in form 6, or to the 
 like effect. 
 
 2. No such warrant shall be signed in blank. 
 
 660. Every warrant shall be under the hand and seal of the justice 
 issuing the same, and may be directed, either to any constable by name, 
 or to such constable and all other constables within the territorial juris- 
 diction of the justice issuing it, or generally to all constables within such 
 jurisdiction. 
 
 2. The warrant shall state shortly the offence for which it is issued, 
 and shall name or otherwise describe the offender, and it shall order the 
 officer or officers to whom it is directed to apprehend the offender and bring 
 him before the justice, or justices issuing the warrant, or before some other 
 justice or justices to answer to the charge contained in the information 
 or complaint, and to be further dealt with according to law. 
 
 3. It shall not be necessary to make such warrant returnable at any 
 particular time, but the same shall remain in force until it is executed.
 
 156 WARRANTS OF ARREST. 
 
 4. The fact that a summons has been issued shall not prevent any 
 justice from issuing a warrant at any time before or after the time men- 
 tioned in the summons for the appearance of the accused. 
 
 5. In case the service of the summons has been proved and the accused 
 does not appear, or when it appears that the summons cannot be served, 
 a warrant in form 7 may issue. 
 
 We will consider sections 659 and 660 together. We have 
 seen that, by the provisions of sections 654 and 655 of the Code, 
 a prerequisite to a justice issuing a warrant is that he shall have 
 received and taken an information or complaint in writing and 
 under oath, and the justice should hear and consider the allega- 
 tions of the complainant, and the evidence of his witnesses if he 
 desires to do so, and, if he is of opinion that a case for so doing 
 is made out, he shall then issue a summons or warrant as the case 
 may be. The question whether a summons or a warrant should 
 issue in the first instance, is one entirely in the discretion of the 
 justice. He will be guided altogether by circumstances, taking 
 into consideration the nature of the offence charged, the facts al- 
 leged and bearing in mind that the object to be attained is to 
 secure the attendance of the accused. 
 
 It is to be noted, (a) that the warrant must not be signed in 
 blank; (&) it must be under the hand and seal of the justice 
 issuing the same; (c) it may be directed either to any constable 
 by name, or to such constable and all other constables within the 
 territorial jurisdiction of the justice issuing it, or generally to 
 all constables within such jurisdicion; (d) the warrant shall 
 state shortly the offence for which it is issued in this respect it 
 should state the offence as set out in the information; (e) it 
 shall name or otherwise describe the offender, this is important; 
 (/) it shall order the officer, or officers, to whom it is directed, 
 to apprehend the offender and bring him before the justice or 
 justices issuing the warrant, or before some other justice or jus- 
 tices to answer the charge contained in the information or com- 
 plaint, and to be further dealt with according to law. 
 
 As the person apprehended is to answer the charge contained 
 in the information, or complaint, this makes it almost imperative 
 that the offence stated shortly in the warrant should follow the 
 description of the offence as set out in the information; (g) it 
 shall not be necessary to make the warrant returnable at any par- 
 ticular time; it will remain in force until executed. 
 
 The fact of a summons having issued will not prevent a war- 
 rant being issued at any time either before, or after, the time 
 mentioned in the summons for the appearance of the accused. 
 Section 660 (4) of the Code.
 
 ISSUE OF WARRANT AFTER SUMMONS. 157 
 
 In case the service of the summons has been proved and the 
 accused does not appear, or if it appears that the summons can- 
 not be served, a warrant in form 7 may then issue. Ibid. (5) 
 
 It is safe, but perhaps not necessary, in the body of the war- 
 rant, to shew the place where it is made, yet it seems necessary 
 to set forth the county in the margin at least if it be not set forth 
 in the body. 2 Hawkins, ch. 13, sec. 23. 
 
 Upon looking at forms 6 and 7 it will be noticed that the 
 venue is stated in the margin. 
 
 The warrant ought regularly to mention the name of the party 
 to be arrested, and must not be left in general, or with blanks 
 to be filled up by the party afterwards. 2 Hale 114; Dalt. ch. 
 169. 
 
 If the name of the party to be arrested be unknown the war- 
 rant may be issued against him by the best description the nature 
 of the case will allow, as " the body of a man whose name is un- 
 known, but whose person is well known and who is employed 
 as the driver of cattle and wears a badge No. 573." 1 Hale 577. 
 
 As to mistake in name see R. v. Maiheson, 20 C. O. C. 496. 
 
 A warrant to apprehend Hood (omitting the Christian 
 
 name) of B. in the parish of F., by " whatsoever name he may be 
 called or known, the son of Samuel Hood, to answer, &c.," was 
 held defective as omitting the Christian name, assigning no reason 
 for the omission nor giving any distinguishing particulars of 
 the individual, and the conviction of the prisoner because he had 
 resisted was held wrong. R. v. Hood, 1 M. C. 0. 281. 
 
 If there be a mistake in the name of the supposed offender, 
 or if the name of the officer be inserted without authority, and 
 after the issuing of the warrant, or if the officer exceeds the limits 
 of his authority and be killed, this will amount to no more than 
 manslaughter in the person whose liberty is thus invaded. Cole 
 V. Hindson, 6 T. E. 234, per Laurence, J., at p. 236, quoting Fos- 
 ter, 312. 
 
 But if the warrant be filled up by the magistrate before he 
 issues it, though after he signed it, the proceeding is regular and 
 killing the officer endeavouring to arrest the party is murder. 
 R. v. Inhabitants of Winwick, 8 T. R. 455. It might perhaps be 
 questioned whether this would be the present law in view of the 
 positive enactment in sub-sec. 2 of sec. 659 of the Code, which pro- 
 vides that no warrant shall be signed in blank. The words, how- 
 ever, are, " No such warrant ;" the warrant referred to is " the
 
 158 REQUISITES AS TO WARRANTS. 
 
 warrant issued by a justice," as provided in the first sub-section. 
 So a fair construction would be that no warrant shall be issued 
 that is signed in blank, to be filled up after issue; but that the 
 justice might sign the warrant before he fills it up, provided he 
 does not issue it. 
 
 The safer plan however to pursue is to fill up the warrant be- 
 fore signing it. 
 
 A general warrant upon a complaint of robbery to apprehend 
 all persons suspected and to bring them before a justice hath been 
 ruled void, and false imprisonment lies against him that issues 
 such warrant. 1 Hale 580; 2 Hale 112. So a general warrant 
 to apprehend the authors, printers and publishers of a libel with- 
 out naming them is illegal. Money v. Leacli, 1 Wm. Bl. 555, 
 19 Howell's State Trials, 1002. 
 
 The warrant should state the specific offence with which the 
 party is charged. Caudle v. Seymour, I Q. B. 889. 
 
 The following warrant was in the above case held to be bad: 
 " I do hereby in Her Majesty's name command you and every 
 of you, upon sight hereof, to apprehend and bring before me, one 
 of Her Majesty's justices of the peace, the body of (the plaintiff) 
 of whom you shall have notice, to answer to all such matters and 
 things as on Her Majesty's behalf shall be objected against him 
 on oath by Mary Ann Warner of, &c., for an assault committed 
 upon her upon the 24th instant." 
 
 The warrant need not be returnable at a place certain. 4 
 Black Com. 291. 
 
 It ought to set forth the year and day wherein it is made, 
 that, in an action brought upon arrest by virtue of it, it may ap- 
 pear to have been prior to such arrest and also, in case where the 
 statute directed the prosecution to be within such a time, that 
 it may appear that the prosecution is commenced within such 
 time limited. 2 Hawk. ch. 13, sec. 22. And it is in general better 
 to state the place where the warrant is made. Dalt. ch. 169. 
 
 If forms 6 and 7 of the Code are strictly followed these re- 
 quirements will be met with. 
 
 In case of a warrant by more than one justice, in determining 
 whether they shall issue it, the justices must, it seems, be acting 
 together, but it is not necessary that all of them should be pre- 
 sent when each executes it. Batty e v. Gresley, 8 East 319. 
 
 A warrant to arrest for embezzlement should shew that the 
 defendant was, or had been, a clerk or servant, or was, or had
 
 IRREGULARITIES IN WARRANTS. 159 
 
 been, employed in that capacity, and that he had received property 
 said to have been embezzled by him, or that it has been delivered 
 to him, or taken into his possession for, or in the name or on 
 account of his master or employer. McGregor v. Scarlett, 7 P. B. 
 20, per Wilson, J., at p. 28 (see sec. 359 of the Oode). 
 
 A warrant issued by a justice founded on an information which 
 discloses no criminal offence cannot be sustained by proof that 
 there was in fact parol evidence on oath given which conveyed a 
 criminal charge. Lawrenson v. Hill, 10 Ir. C. L. E. 177. 
 
 A written and sworn information is essential before a war- 
 rant can be legally issued. Friel v. Ferguson, (1865) 15 U. C. 
 
 C. P. 584. 
 
 Where the warrant omitted to state the fact that the informa- 
 tion on which it was issued was taken on oath, whereas as a fact 
 it had been so taken, held at most an irregularity which would be 
 covered by sec. 669. Kingston v. Wallace, (18S6) 25 N. B. E. 573. 
 
 A justice who illegally issues a warrant, without having re- 
 ceived a sworn information in respect of the charge, is liable in 
 trespass for the arrest made thereunder, and he cannot justify 
 the commanding of the constable to make the arrest by shewing 
 that he the justice had a reasonable suspicion that an offence 
 had been committed. McGuiness v. Dafoe, (1896) 3 C. C. C. 139, 
 and see R. v. McDonald, (1896) 3 C. C. C. 287. 
 
 As to a peace officer making an arrest on suspicion without 
 warrant, see sec. 30 of the Code. 
 
 If the accused is in fact present before the magistrate and 
 the magistrate has jurisdiction over the person and offence, he may 
 lawfully proceed with the hearing of the charge notwithstanding 
 that the warrant on which the accused was arrested was executed 
 by a person not legally qualified for that purpose. Ex parte 
 Giberson, (1898) 4 C. Cl C. 537; and see R. v. Hughes, 4 Q. B. 
 
 D. 614; and see R. v. McLean, (1901) 5 C. 0. C. 67, and R. V. 
 Weiss (No. 2), 22 C'. C. C. 42. 
 
 As to jurisdiction of justice to proceed when prisoner brought 
 before him by arrest under an illegal warrant, see cases collected 
 at pages 238 and 252. 
 
 An objection that a warrant of arrest was unstamped under . / 
 provincial tariff, held objection waived as not being taken on pre- \/ 
 liminary hearing, too late when made for the first time on hearing 
 of speedy trial. R. v. Rodrigue, (1907) 13 0. C. C. 249.
 
 160 ESSENTIALS IN WARRANTS OF ARREST. 
 
 Law stamps are not payable by the Crown in criminal pro- 
 ceedings before a district magistrate in Quebec. Ibid. 
 
 Where there is an absolute and positive statement by the in- 
 formant in the sworn information of the commission of the offence 
 by the accused, a warrant of arrest may be issued without an ex- 
 amination of the informant or of his witnesses. Ex parte Madden, 
 (1908) 13 C. C. C. 273. 
 
 Failure to serve at the time of arrest a copy of the warrant 
 to apprehend, even in cases when the statute directs such service 
 to be made, does not go to the jurisdiction of the magistrate, and 
 is not a ground for setting aside a conviction. Ibid. Ex parte 
 Cofon, 11 C. C. 0. 48, distinguished. 
 
 The above relates to warrants issued in offences under sum- 
 mary conviction clauses. 
 
 A justice of the peace who issues a warrant of arrest without 
 inquiring into the grounds which the complainant had to suspect 
 the accused 1 , becomes liable towards the latter under the laws of 
 Quebec, when the complaint was not justified by any serious rea- 
 sonable or plausible ground. Murfina v. Sauve, (1901) 6 C. C. C. 
 275; and see R. v. Lizotte, 10 0. C. C. 316. 
 
 It is not essential that a magistrate should add to his signa- 
 
 _1_ ture to a warrant the full designation of his office and the name 
 
 of the district for which he was appointed, if such is recited 
 
 in the body of the warrant. R. v. Lee Chu, (1909) 14 C. C. C. 
 
 322. 
 
 A warrant of arrest for perjury is sufficient under sec. 1152 
 of the Code, if it charges that the accused committed perjury by 
 swearing that he did not do a particular act specified, without 
 alleging therein that the statement was sworn with intent to mis- 
 lead the Court. Ibid. 
 
 Prisoner was arrested in Halifax by the police department of 
 that city on request by telegram from the chief of detectives, Mont- 
 real. The telegram stated that a warrant had been sworn out in 
 Montreal for Lee Chu's arrest for perjury. On habeas corpus 
 proceedings the Chief of Halifax Police returned a warrant issued 
 in Montreal by Bazin, P.M., of that city, the warrant being en- 
 dorsed by Geo. H. Fielding, stipendiary magistrate for Halifax. 
 " I am not I think called upon to say whether the arrest was law- 
 ful in the first instance. I think I cannot discharge the prisoner 
 when a warrant duly executed is returned to me as the cause of 
 his detention with the endorsement by the stipendiary magistrate
 
 EXECUTION OF WARRANTS OF ARREST. 16] 
 
 of the city authorizing its execution." RUSSELL, J., at p. 327. 
 Ibid. For arrest on telegram, see R. v. Cloutier, (1898) 2 C. C. 
 C. 43. 
 
 As all warrants of arrest are directed to a constable or other 
 peace officers or constables, they alone can execute the same. A 
 warrant cannot be directed to any one except a constable or peace 
 officer, and no one else can legally execute the same by arresting 
 the accused. Any constable or peace officer to whom a warrant 
 is directed is bound to execute the same. 
 
 A peace officer executing a warrant of arrest is exempt from 
 criminal responsibility therefor by sec. 29 of the Oode " if he it 
 good faith and without culpable ignorance and negligence believer 
 that the warrant or process is good in law." Ignorance of the 
 law in such a case can be an excuse. It shall be a question of 
 law whether the facts of which there is evidence may or may not 
 constitute culpable ignorance or negligence in the belief of the 
 person executing the warrant that the same is good in law. Se<e 
 sec. 29 of the Code, and Gaul v. Ellice, (1902) 6 C. C. C. 15. 
 
 Where a warrant is directed to a certain person, as for in- 
 stance the constable of A, that is the constable of such division, 
 it cannot be lawfully executed by any other person. R. v. San- 
 ders, L. R. 1 C. C. R. 75; see also Symonds v. Kurtz, 16 Cox 726, 
 53 J. P. 727, and Jones v. Ross, 3 TJ. C. R. 328. 
 
 EXECUTION OF THE WARRANT. 
 
 661. Every such warrant may be executed by arresting the accused 
 wherever he is found in the territorial jurisdiction of the justice by whom 
 it is issued or, in the case of fresh pursuit, ,at any place in an adjoining 
 territorial division within seven miles of the border of the first-mentioned 
 division. 
 
 2. Every such warrant may be executed by any constable named therein 
 or by any one of the constables to whom it is directed, whether or not the 
 place in which it is to be executed is within the place for which he is a 
 constable. 
 
 3. Every warrant authorized by this Act may be issued and executed 
 on a Sunday or statutory holiday. 
 
 The officer to whom a warrant is directed and delivered ought 
 with all speed and secrecy to find out the party and then to 
 execute the warrant. Dalt. ch. 169. 
 
 When the party named in the warrant employs others to assist 
 him, he must be so near as to be acting in the arrest in order to 
 render it legal. Blatch v. Archer, Cowper 66. 
 
 C.C.P. 11
 
 1(2 PROCEEDINGS TO BE FOLLOWED IN MAKING ARRESTS. 
 
 An arrest in the night is good both at the suit of the Queen, 
 and of the subject, else the party may escape. 9 Rep. 66. 
 
 By sub-sec. 3 of sec. 661, a warrant may be both issued and 
 executed on a Sunday, or statutory holiday. 
 
 To constitute an arrest, the party need not be touched by the 
 officer, it being sufficient if he is commanded to give himself up 
 and does so. 2 Bishop's 0. Law, 33. 
 
 A person, it seems, may be twice apprehended under the same 
 warrant if the purposes of the warrant have not been effected. 
 Dickenson v. Brown, Peake's Rep. 307, and R. \. O'Hearon (No. 
 2), (1901) 5 C. C. O. 531; and see Ex parte Doherty, (1899) 
 T. C. 0. C. 94. 
 
 Bare words will not constitute an arrest without laying hold 
 of the party or otherwise restraining his liberty. Genner v. 
 Sparkles, 1 Salk. 79. See cases collected in 2 Chit. Arch. Prac., 
 1 4th ed., 894. 
 
 The directions of the warrant must be strictly observed, or 
 the party executing it will not be justified in his acts and may 
 he treated as a trespasser, as if the warrant be to arrest A and he 
 .-irrest B. 2 Haivk., cli. IS, sec. 31. 
 
 By sec. 40 of the Code, it is the duty of every one executing 
 any process or warrant to have it with him and to produce it if 
 required. 
 
 And, where practicable, the officer should give notice of the 
 process or warrant under which he acts, or of the cause of the 
 arrest. Ibid. 
 
 An officer giveth sufficient notice what he is when he saith to 
 the party, " I arrest you in the Queen's name," and in such case 
 the party at his peril ought to obey him, though he knoweth him 
 not to be an officer; and if he have no lawful warrant the party 
 grieved may have his action for false imprisonment. Dolt, 169. 
 
 The doctrine that even a known officer is not obliged to shew 
 his authority when demanded was considered as dangerous be- 
 cause it may affect the party criminally in the event of resistance, 
 and, if homicide ensues, the legality of the warrant enters materi- 
 ally into the merits of the question. And Lord Kenyon observed 
 that he did not think a person is bound to take it for granted that 
 Another, who say? he has a warrant against him without produc- 
 ing it, speaks the truth. Hall v. Roche, S T. E. 188. 
 
 A constable went to the plaintiff's house with a warrant for 
 his arrest, shewed him the warrant, allowed him to take a copy
 
 DUTIES OF CONSTABLES MAKING ARRESTS. 163 
 
 of it and then he accompanied the constable to the magistrate, 
 who, after examining him, dismissed the plaintiff. In an action 
 against the magistrate for assault and false imprisonment, a ver- 
 dict was given for the defendant (the magistrate). Upon shew- 
 ing cause against a rule for setting aside the verdict, MANSFIELD, 
 C.J., held that, as the plaintiff went voluntarily before the magis- 
 trate, the warrant being made no other use of than as a summons, 
 this was not arrest and, therefore, the verdict was right. Arrow- 
 smith v. Le Mesurier, 2 B. & P. N" R. 211, and see Russen v. 
 Lucas, 1 C. & P. 153. 
 
 If the constable making the arrest is also the prosecutor, it 
 seems that the arrest would be illegal. Re McMurrer (No. 2), 18 
 C. 0. C. 49. 
 
 But, when a peace officer has no personal interest in a case 
 and lays an information solely in discharge of his official duty, 
 there is no objection to his executing the warrant of arrest. 
 Stone v. Vallee, 18 C. C. C. 222. 
 
 And if the constable come unto the party and require him to 
 go before the justice, that is no arrest or imprisonment. Dolt, 
 ch. 170. 
 
 In no case is a constable required to part with the warrant 
 out of his own possession, for that is his justification. R. v. 
 Wyatt, 2 Ld. Ray., at p. 1196. 
 
 Where a constable tells a person given in to his charge that 
 he must go with him before a magistrate, and the person goes 
 quietly and without force being used, it is an arrest. See Chinn 
 v. Morris, 2 C. & P. 361 ; Perrin v. Joyce, 6 U. C. 0. S. 300, and 
 see Pocock v. Moore, Ry. & M. 321, and Forsytli v. Goden, 32 
 C. L. J. 288, 499. 
 
 No one should be handcuffed unless, from the nature of the 
 offence and the supposed character of the prisoner, or for violent 
 resistance to arrest, or attempt to escape, or for some other suffi- 
 cient reason, the constable has reasonable- apprehension that the 
 prisoner would otherwise escape, or that there is danger that he 
 might do so. Wright v. Court, 4 B. & C. 596 ; Griffin v. Coleman, 
 4 H. & N. 265; Hamilton v. Massie, 18 0. R. 585. 
 
 The party arrested should not be treated with any unneces- 
 sary harshness beyond what is actually necessary for his safe 
 custody. Ibid.
 
 164 DUTIES OF CONSTABLES IN MAKING ARRESTS. 
 
 It is well to note here the provisions of sec. 39 and sec. 66 of 
 the Code as follows : 
 
 39. Every one executing any sentence, warrant or process, or in 
 making any arrest, and every one lawfully assisting him, is justified, or 
 protected from criminal responsibility as the case may be, in using such 
 force as may be necessary to overcome any force used in resisting such 
 execution or arrest unless the sentence, process or warrant can be executed 
 or the arrest effected by reasonable means in a less violent manner. 
 
 While force may be used in executing a warrant, it must be 
 only such force as may be necessary to oyercome any force used 
 in resisting the arrest. Such force must not be excessive. 
 
 66. Every one authorized by law to use force is criminally responsible 
 for any excess, according to the nature and quality of the act which con- 
 stitutes the excess. 
 
 As to the case of breaking open doors in order to apprehend 
 offenders, it is to be observed that the law doth never allow of 
 such extremities, but in cases of necessity, and, therefore, no one 
 can justify breaking open another's doors to make an arrest, unless, 
 perhaps, for felony, unless he first signify to those in the house 
 the cause of his coming, and request them to give admittance. 2 
 Hawk., ch. 14, sec. 1; Launock v. Brown, 2 B. & Aid. 592. 
 
 No precise words are required in a case of this kind; it is 
 sufficient that the party had notice that the officer cometh not as 
 a mere trespasser, but claiming to act under a proper authority, 
 provided that the officer has a legal warrant (Fast. 137). 
 
 But, where a person authorized to arrest another who is shel- 
 tered in a house is denied quietly to enter it in order to take him, 
 it seems generally to be agreed that he may justify breaking open 
 the doors in the following instances: 
 
 (1) Upon a capias grounded upon an indictment for any 
 crime whatsoever; or upon a capias from the Chancery or King's 
 Bench to compel a man to find securities for the peace, or good 
 behaviour, or even upon a warrant from a justice of the peace for 
 such purpose. 2 Hawk., ch. 14, sec. 3. 
 
 Where a party has been guilty of contempt of Court and pro- 
 cess has been issued against him for it, outer doors may be broken 
 open to execute it. Semayne's Case, 5 Rep. 92; and see Burdett 
 v. Abbot, 14 East., at p. 157. 
 
 (2) When one known to have committed a treason or felony, 
 or to have given another a dangerous wound, is pursued either 
 with or without a warrant by a constable, or a private person. 
 But where one lies under a probable suspicion only and is not
 
 DUTIES OF CONSTABLES IN MAKING ARRESTS. 165 
 
 indicted, it seems the better opinion at this day that no one can 
 justify the breaking open doors in order to apprehend him. 2 
 Hawk., cli. 14, sec. 7; Hale 91; 4 East. 177. 
 
 But, upon a warrant for probable cause of suspicion of felony, 
 the person to whom such warrant is directed may break open 
 doors to take the person suspected, if upon demand he will not 
 surrender himself, as well as if there had been an express and 
 positive charge against him; and so (he says) hath the common 
 practice obtained notwithstanding the contrary opinion of Lord 
 Coke: for, in such case, the process is for the King and, therefore, 
 a non omittas is implied. 1 Hale 580, 583; 2 Rale 111. 
 
 And, as he may break open such person's own house, so much 
 more may he break open the house of another to take him; for 
 so the sheriff may do upon a civil process; but then he must at 
 his peril see that the felon be there ; for, if the felon be not there, 
 he is a trespasser to the stranger whose house it is. 2 Hale 117, 
 Semayne's Case, 5 Rep. 92. 
 
 But it seems that he that arrests as a private man, barely 
 upon suspicion of felony, cannot justify the breaking open of 
 doors to arrest the party suspected, but he doth it at his peril, 
 that is, if in truth he be a felon, then it is justifiable, but if he 
 be innocent, but upon a reasonable cause suspected, it is not 
 justifiable. 1 Hale 82. 
 
 But a constable in such case may justify. Another reason of 
 the difference is this : because, in the former case, it is but a thing 
 permitted to private persons to arrest for suspicion, and they are 
 not punishable if they omit it; and, therefore, they cannot break 
 open doors ; but, in case of a constable, he is punishable if he omit 
 it on complaint. 2 Hale 92. 
 
 And in general an officer upon any warrant from a justice, 
 either for the peace or good behaviour, or in any case where the 
 King is party, may by force break open a man's house to arrest 
 the offender. Dalt. cli. 169. 
 
 It is justifiable for a private person to break and enter the 
 house of another and imprison his person in order to prevent him 
 murdering his wife. Handcock v. Baker, 2 B. & P. 260. 
 
 But a private person is not justified in arresting, or giving in 
 charge of a policeman without a warrant, a party who has been 
 engaged in an affray, unless the affray is still continuing, or there 
 is reasonable ground for apprehending that he intends to renew it. 
 Price v. Seeley, (1843) 10 Cl. & Fin. 28.
 
 166 DUTIES OF CONSTABLES IN MAKING ARRESTS. 
 
 A private person cannot of his own authority arrest another 
 for a breach of the peace after it is over. S Hawk. 164; see gee. 
 46 of the Code. 
 
 As to persons other than peace officers making an arrest, or 
 assisting in the same, see the following sections of the Code : 28, 
 29, 31, 32, 33, 34 and 36. 
 
 By sec. 36, everyone is justified in arresting without warrant 
 any person whom he finds by night committing any offence. And 
 see further sees. 37, 42, 43, 44, 45, 46. 
 
 A man's house is his castle for safety and repose to himself 
 and his family ; but, if a stranger who is not of the family upon a 
 permit taketh refuge in the house of another, this rule doth not 
 extend to him, it is not his castle, he cannot claim the benefit of 
 sanctuary therein. Post. 320, and Semayne's Case, supra. 
 
 And it is always to be remembered that this rule must be 
 confined to the case of arrest upon process in civil suits only ; for, 
 where a felony hath been committed, or a dangerous wound given, 
 or even where a minister of justice cometh armed with process 
 founded upon a breach of the peace, the party's own house is no 
 sanctuary for him; in these cases, the justice which is due to the 
 public must supersede every pretence of private inconvenience. 
 Fast. 320. 
 
 In all these cases, if an officer, to serve any warrant, enter into 
 a house, the doors being open, and then the doors are locked upon 
 him, he may break them open in order to regain his liberty. 2 
 Hawk. 14, sec. 11. 
 
 If the party arrested escapes, the officer upon fresh pursuit 
 may take him again and again, so often as he escapeth, although 
 he were out of view, in that he shall fly into another town or 
 country. Dalt. ch. 169. 
 
 No one shall break open any building to search for a deserter 
 without a warrant for the purpose. See sec. 657 of the Code. 
 
 As provided by sec. 661, in case of fresh pursuit, the accused 
 may be arrested on the warrant at any place in an adjoining terri- 
 torial division within seven miles of the border of the first men- 
 tioned division. 
 
 The " first-mentioned division " is the territorial division in 
 which the warrant issued. 
 
 By sec. 2, sub-sec. 36 of the Code, a territorial division is de- 
 fined as follows:
 
 PROCEEDINGS ON SUNDAYS AND HOLIDAYS. 167 
 
 36. " Territorial division " includes any county, union of counties, 
 township, city, town, parish or other judicial division or place to which 
 the context applies. 
 
 The seven miles mentioned are measured, not by the nearest 
 practicable road, but by a straight line from point to point on the 
 horizontal plane " as the crow flies." Lake v. Butler, 24 L. 1 
 Q. B. N. S. 273 ; E. v. Walden, 9 Q. B. 76. 
 
 Warrants may not only be executed on Sundays, but upon 
 statutory holidays. , 
 
 " Holiday " is denned by sec. 34, sub-sec. 11, of " The Inter- 
 pretation Act," E. S. C., eh, 1, as follows : 
 
 11. "Holiday" includes Sundays, New Year's Day, the Epiphany, 
 Good Friday, the Ascension, All Saints' Day, Conception Day, Easter 
 Monday, Ash Wednesday. Christmas Day, the birthday or the day fixed by 
 proclamation for the celebration of the birthday of the reigning sovereign, 
 Victoria Day, Dominion Day, the first Monday in September, designated 
 Labour Day, and any day appointed by proclamation for a general fast o? 
 thanksgiving. 
 
 " Dominion Day " is the first of July and, if that date falls on 
 a Sunday, then the second of July. 
 
 " Victoria Day " is the 24th of May and, if that day falls on n 
 Sunday, then the twenty-fifth of May. 
 
 A preliminary enquiry cannot be held on a statutory holiday. 
 E. v. Murray, (1897) 1 C. C. O. 452. 
 
 And such an enquiry cannot be held on a Sunday. E. r. 
 Cavelier, (1896) 1 C. C. C. 134; Re Cooper, 5 P. E. 256; but see 
 Ex parte Garland, 8 C. C. C. 385; and see Re McGillivray, (1907) 
 13 C. C. 0. 113. 
 
 As a warrant can only issue after an information in writing 
 and under oath has been received by a justice, it therefore follows 
 that an information or complaint may be taken and laid upon a 
 Sunday or statutory holiday. As it has been held, in R. v. Ettin- 
 ger, supra, that the taking of an information is a " judicial act/' 
 this means a considerable departure from the common law, und^r 
 which only ministerial acts could be performed on Sunday. 
 
 BACKING THE WARRANT. 
 
 662. If the person against whom any warrant has been issued cannot 
 be found within the jurisdiction of the justice by whom the same wan 
 issued, but is or is suspected to be in any other part of Canada, any justice 
 within whose jurisdiction he is or is suspected to be, upon proof being made 
 on oath or affirmation of the handwriting of the justice who issued th 
 same, shall make an endorsement on the warrant, signed with his name, 
 authorizing the execution thereof within his jurisdiction. 
 
 2. Such endorsement shall be sufficient authority to the person bringing 
 such warrant, and to all other persons to whom the same was originally
 
 L68 BACKING- WARRANTS OF ARREST. 
 
 directed, and also to all constables of the territorial division where the 
 warrant has been so endorsed, to execute the same therein and to carry 
 the person against whom the warrant issued when apprehended, before the 
 justice who issued the warrant or before some other justice for the same 
 territorial division. 
 
 3. Such endorsement may be in form 8. 
 
 FORM 8. 
 (Section 662.) 
 
 Endorsement in Backing a Warrant. 
 
 Oounty of 
 Province of 
 Canada, 
 
 Whereas proof upon oath has this day been made before me , 
 
 a justice of the peace in and for the said county of , that the 
 
 name of J. S. to the within warrant subscribed, is of the handwriting of 
 the justice of the peace within mentioned ; I do, therefore, hereby authorize 
 W. T., who brings to me this warrant, and all other persons to whom this 
 warrant was originally directed, or by whom it may be lawfully executed, 
 and also all peace officers of the said county of , to execute 
 
 fch'e same within the said last-mentioned county. 
 
 Given under my hand, this day of , in the year 
 
 at , in the county aforesaid. 
 
 J. K, 
 
 J. P., (name of county). 
 
 The backing of a warrant is a purely ministerial act, and the 
 justice who issued the warrant is responsible for an arrest under 
 it, although the warrant is backed by another justice and executed 
 in another county. Jones v. Grace, 17 0. R. 681. 
 
 The endorsements on the warrant must shew that the signature 
 of the justice issuing the warrant was proved to the justice back- 
 ing it. Reid v. Maybee, 31 IT. C. C. P. 384. 
 
 An arrest made in an outside county before the warrant is 
 back is not legal, but, if this defect is remedied, the accused may 
 be held or re-arrested, on a warrant so endorsed without his being 
 first set free from the original custody. Southwick v. Hare, 
 (1893) 24 0. R. 528. 
 
 " If the warrant itself be defective, if it be not enforced by a 
 proper officer, or if it be executed out of the jurisdiction without 
 being backed by the proper magistrate . . . the party may 
 legally resist the attempt to apprehend him and even third per- 
 sons may lawfully interfere to oppose it, doing no more than is 
 necessary for that purpose." Chitty's Crim. Law, Vol. I., p. 60. 
 
 " For, if a man without authority attempt to arrest another 
 illegally, it is a breach of the peace, and any other person may
 
 EXECUTION OF WARRANTS. 169 
 
 lawfully interfere to prevent it, doing no more." LORD ELLEN- 
 BOROUGH, in King v. Osmer, 5 East, at p. 308. 
 
 By the Criminal Code Amendment Act of 1909, sub-sec. 4 was 
 added to sec. 662, making provision for the execution of war- 
 rants against persons who are confined in any prison within the 
 province and bringing them before justices on preliminary inquiry 
 as follows: 
 
 " 4. If the person against whom such warrant has been issued is then 
 confined for some other cause in any prison within the province then, upon 
 application to the judge of any superior, county or district court, and upon 
 production to him of the warrant with an affidavit setting forth the above 
 facts, such judge if he is satisfied that the ends of justice require it, may 
 make an order in writing addressed to the warden or keeper of such prison, 
 or to the sheriff or other person having the custody of the prisoner, to 
 bring up the body of such person before the justice who is holding the 
 preliminary inquiry from day to day, as may be necessary for the purposes 
 of such inquiry, and such warden, keeper, sheriff or other person, upon 
 being paid his reasonable charges in that behalf, shall obey such order." 
 
 A warrant issued for the apprehension of a person charged 
 with an indictable offence may be executed anywhere in Canada, 
 provided the warrant is backed in accordance with the provisions 
 of this section. If a person against whom the warrant is issued 
 cannot be found in the county in which it has been backed, the 
 warrant may be backed again in any other county and so on from 
 county to county and province to province until the offender is 
 apprehended. And, if the offender has not been so apprehended 
 and returns to the county in which the warrant was originally 
 issued, he may still be apprehended there on the original warrant 
 notwithstanding such backings. 
 
 It is to be remembered that by the provisions of sub-sec. 3 of 
 sec. 660 of the Oode supra a warrant is not returnable at any 
 particular time, and it remains in force until it is executed. 
 
 INDICTABLE OFFENCES COMMITTED ON THE SEAS. 
 
 656. Whenever any indictable offence is committed on the high seas, 
 or in any creek, harbour, haven or other place in which the Admiralty 
 of England have or claim to have jurisdiction, and whenever any offence 
 is committed on land beyond the seas for which an indictment may be pre- 
 ferred or the offender may be arrested in Canada, any justice for any 
 territorial division in which any person charged with, or suspected of, 
 having committed any such offence, is or is suspected to be, may issue his 
 warrant in the form 4 in schedule one hereto, or to the like effect, to 
 apprehend such person, to be dealt with as herein and hereby directed. 
 
 The Admiralty jurisdiction of England extends over British 
 vessels when in the river of foreign territory where the tide ebbs 
 and flows, and where great ships go. All persons, whatever their 
 nationality, while on board British vessels on the high seas, or in
 
 170 PROCEDURE AFTER ARREST. 
 
 foreign rivers where the tide ebbs and flows, are likewise amenable 
 to British law. E. v. Carr, 52 L. J. M. 0. 12. 
 
 ARREST OF SUSPECTED DESERTER. 
 
 657. Every one who is reasonably suspected of being a deserter from 
 His Majesty's service may be apprehended and' brought for examination 
 before any justice of the peace, and if it appears that he is a deserter, he 
 shall be confined in gaol until claimed by the military or naval authorities, 
 or proceeded against according to law. 
 
 2. No one shall break open any building to search for a deserter 
 unless he has obtained a warrant for that purpose from a justice of the 
 peace, such warrant to be founded on affidavit that there is reason to 
 believe that the deserter is concealed in such building, and that admittance 
 has been demanded and refused. 
 
 3. Every one who resists the execution of any such warrant shall 
 incur a penalty of eighty dollars, recoverable on summary conviction before 
 two justices. 
 
 PROCEDURE AFTER ARREST. 
 
 If the arrest be by virtue of a warrant, when the officer hath 
 made the arrest, he is forthwith ta bring the party according to 
 the direction of the warrant. Wright v. Court, 4 B. & C. 596. 
 
 If it be to bring the party before the justice who granted the 
 warrant specially, then the officer is bound to bring him before 
 the same justice; but, if the warrant be to bring him before any 
 justice of the county, then it is in the election of the officer to 
 bring him before what justice he thinks fit and not in the election 
 of the prisoner. Foster's Case, 5 Rep. 59 ; 1 Hale 582, 2 Hale 
 112. 
 
 But if the time be unseasonable, as in or near the night whereby 
 he cannot attend the justice, or if there be danger of a present 
 rescue, of if the party be sick, he may secure him in the stocks (?) 
 or in a house till the next day or such time as it may be reason- 
 able to bring him. 2 Hale 120. 
 
 And when he hath brought him to the justice yet he is in law 
 still in his custody till the justice discharge, or bail, or commit 
 him. Ibid. 
 
 But it is said the constable is not bound to return the warrant 
 itself, but may keep it for his own justification, in case he should 
 be questioned for what he had done, but only to return what he 
 had done upon it. R. v. Wyatt, 2 Ld. Baym., at p. 1196; 1 East 
 P. C. 319. 
 
 The procedure under the Code when an arrest is made upon an 
 endorsed or backed warrant is provided for by sec. 663, as follows :
 
 PROCEDURE AFTER ARREST ON BACKED WARRANT. 171 
 
 663. If the prosecutor or any of the witnesses for the prosecution are 
 in the territorial division where such person has been apprehended upon a 
 warrant endorsed as provided in the last preceding section, the constable 
 or other person or persons who have apprehended him may, if so directed 
 by the justice endorsing the warrant, take him before such justice, or 
 before some other justice for the same territorial division ; and the said 
 justice may thereupon take the examination of such prosecutor or wit- 
 nesses, and proceed in every respect as if he had himself issued the 
 warrant. 
 
 In other cases where an arrest has been made, the procedure 
 is provided by sec. 664. 
 
 664. When any person is arrested upon a warrant, he shall, except 
 in the case provided for in the last preceding section, be brought as soon 
 as is practicable before the justice who issued it or some other justice for 
 the same territorial division, and such justice shall either proceed with the 
 inquiry or postpone it to a future time, in which latter case he shall either 
 commit the accused person to proper custody or admit him to bail, or 
 permit him to be at large on his own recognizance, according to the pro- 
 visions hereinafter contained. 
 
 By sec. 664 of the Code, it will be seen that, when any per- 
 son is arrested on a warrant, except in cases provided for by sec. 
 663, he should be brought as soon as practicable before the justice 
 who issued the warrant or some other justice for the same terri- 
 torial division. The justice before whom the offender is brought 
 shall either proceed with the inquiry or postpone it to a future 
 day. If a postponement is granted, the accused shall either be 
 committed to proper custody, or be admitted to bail, or be per- 
 mitted to be at large on his own recognizance. 
 
 OFFENCES COMMITTED OUT OF JURISDICTION. 
 
 Where an accused person is brought before any justice charged 
 with an offence committed out of the limits of the jurisdiction of 
 such justice, the proceedings are governed by sees. 665 and 666 
 of the Code, as follows : 
 
 665. The preliminary inquiry may be held either by one justice or 
 by more justices than one. 
 
 2. If the accused person is brought before any justice charged with an 
 offence committed out of the limits of the jurisdiction of such justice, such 
 justice may, after hearing both sides, order the accused at any stage of 
 the inquiry to be taken by a constable before some justice having juris- 
 diction in the place where the offence was committed. 
 
 3. The justice so ordering shall give a warrant for that purpose to a 
 constable, which may be in form 9, or to the like effect, and shall deliver 
 to such constable the information, depositions and recognizances, if any, 
 taken under the provisions of this Act, to be delivered to the justice before 
 whom the accused person is to be taken, and such depositions and recog- 
 nizances shall be treated to all intents as if they had been taken by the 
 last-mentioned justice. 
 
 666. Upon the constable delivering to the justice the warrant, infor- 
 mation, if any, depositions and recognizances, and proving on oath or 
 affirmation, the handwriting of the justice who has subscribed the same,
 
 172 CORONER'S INQUISITION. 
 
 such justice, before whom the accused is produced, shall thereupon fur- 
 nish such constable with a receipt or certificate in form 10, of his having 
 received from him the body of the accused, together with the warrant, in- 
 formation, if any, depositions and recognizances, and of his bavin? proved 
 to him, upon oath or affirmation, the handwriting of the justice who issued 
 the warrant. 
 
 2. If such justice does not commit the accused for trial, or hold him 
 to bail, the recognizances taken before the first-mentioned justice shall be 
 void. 
 
 CORONER'S INQUISITION. 
 
 667. Every coroner, upon any inquisition taken before him whereby 
 any person is charged with manslaughter or murder, shall, if the person or 
 persons, or either of them, affected by the verdict or finding is not already 
 charged with the said offence before a magistrate or justice, by warrant 
 under his hand, direct that such person be taken into custody and be con- 
 veyed, with all convenient speed, before a magistrate or justice ; or such 
 coroner may direct such person to enter into a recognizance before him, 
 with or without a surety or sureties, to appear before a magistrate or 
 justice. 
 
 2. In either case it shall be the duty of the coroner to transmit to 
 such magistrate or justice the depositions taken before him in the matter. 
 
 3. Upon any such person being brought or appearing before any such 
 magistrate or justice, he shall proceed in all respects as though such per- 
 son had been brought or had appeared before him upon a warrant or sum- 
 mons. 
 
 In general, it is the most important duty of a coroner to take 
 inquests of unnatural and sudden deaths, and this whether they 
 arise by accident, felo de se, or in prison. 
 
 When it happens that any person comes to an unnatural death, 
 the township shall give notice thereof to the coroner. Otherwise, 
 if the body be interred before he come, the township shall be 
 amerced. 1 Burns' Justice, 1211. 
 
 nBy sec. 940 of the Code, it is provided that no one shall be 
 ried upon any coroner's inquisition. 
 
 A person who has been charged by a coroner's inquisition with 
 being responsible for the death of another shall be proceeded 
 against as provided in sec. 667 now under discussion. And he 
 shall be entitled to a preliminary inquiry before a magistrate or 
 justice, and it is not until after such accused person has been com- 
 mitted for trial under the provisions of Part XIV., and by a 
 warrant of commitment under sec. 690, that such person shall be 
 held for trial for the offence with which he was charged by the 
 coroner's inquisition. And then, before he is tried, the grand jury 
 must find a true bill against him. 
 
 _ A coroner's inquest cannot legally be held upon a Sunday. 
 Re Cooper, 5 P. R. 256. 
 
 Although the proceedings were not thereby made illegal, yet 
 the Court declared it inexcusable carelessness upon the part of the
 
 CORONER'S INQUISITION. 173 
 
 coroner when the depositions, the finding of the jury and the 
 signatures of the jury and the coroner were all written in pencil. 
 R. v. Winegarner, 17 0. R. 208. 
 
 The inquisition of a coroner is defective if it does not identify 
 the body of the deceased as that of the person with whose death 
 the prisoner is charged; but, if the evidence shews a felony, the 
 prisoner may be recommitted. R. v. Berry, 9 P. R. 123. 
 
 A coroner has jurisdiction to hold and is justified in holding 
 an inquest if he honestly believes information which has been 
 given to him to be true, which, if true, would make it his duty 
 to hold such inquest. R. v. Stephenson, 13 Q. B. D. 331; 15 
 Cox 679. 
 
 See the statutes of the different provinces relating to coroners. 
 
 To burn a dead 'body, instead of burying it, is not a misde- 
 meanour, unless it is so done as to amount to a public nuisance. 
 If an inquest ought to be held upon a dead body, it is a misde- 
 meanour so to dispose of the body as to prevent the coroner from 
 holding an inquest. R. v. Price, 12 Q. B. D. 247. 
 
 A coroner's inquisition is a Court of Record and a Criminal 
 Court. R. v. Hammond, (1898) 1 C. C. C. 373, 29 0. R. 211; 
 Thomas v. Churton, (1862) 2 B. & S. 475. . 
 
 A witness before a Coroner's Court is compelled under the 
 Canada Evidence Act to answer incriminating questions, such 
 Court being a Criminal Court and a Court of Record, and pro- 
 ceedings before the coroner are within the jurisdiction of the 
 Federal Parliament, although no one is there charged with the 
 offence of causing the death of the deceased. Ibid.; and see R. v. 
 Hereford, (1860) 3 E. & E. 115; BlacJcstone, vol. 4, 274. 
 
 A coroner is not a " justice " within the meaning of sec. 687 
 (now 999) of the Code, which provides for the use of the deposi- 
 tions taken on a preliminary inquiry upon the trial of an accused 
 person, where the person who gave evidence is dead, or too ill to 
 travel or absent from Canada. R. v. Graham, (1898) 2 C. C. C. 
 388. 
 
 The signed deposition of a witness at a coroner's inquest may 
 be used on the cross-examination of the witness at -the trial for the 
 purpose of contradiction. R. v. Laurin (No. 3), (1902) 5 C. C. 
 C. 548. 
 
 A Coroner's Court is a Court of Record and the coroner is a 
 Judge of a Court of Record. A coroner has power himself to 
 summon the coroner's jury by a mere verbal direction to the
 
 174 SEARCH WARRANTS. 
 
 jurors. A post mortem examination may be directed by the 
 coroner and proceeded with under his direction before the impanel- 
 ling of the jury. Davidson v. Garrett, (1899) 5 C. C. C. 200. 
 
 Coroner summoning a grand jury by order of the Court. R. 
 v. McGuire, (1898) 4 O. 0. C. 12. 
 
 A coroner who is a necessary witness, by reason of having 
 attended the deceased professionally as a physician during the 
 illness from which death resulted, is disqualified from holding the 
 inquest. Re Haney v. Mead, (1898) 34 C. L. J. 330. 
 
 SEARCH WARRANTS. 
 
 Since a justice of the peace may be called upon to issue a 
 search warrant, either to recover stolen property or to secure 
 papers, documents or things which " will afford evidence as to 
 the commission of any such offence/' it may be useful to insert 
 here the three sections of the Code which follow : 
 
 629. Information for search warrant. Any justice who is satisfied 
 by information upon oatfh in form 1, that there is reasonable ground for 
 believing that there is in any building, receptacle or place: 
 
 (a) anything upon or in respect of which any offence against this Act 
 has been or is suspected to have been committed : or 
 
 (ft) anything which there is reasonable ground to believe will afford 
 evidence as to the commission of any such offence ; or 
 
 (c) anything which there is reasonable ground to believe is intended 
 to be used for the purpose of committing any offence against the 
 person for which the offender may be arrested without warrant ; 
 
 may at any time issue a warrant under his hand authorizing some 
 constable or other person named therein to search such building, re- 
 ceptacle or place, for any such thing, and to seize and carry it be- 
 fore the justice issuing the warrant, or some other justice for the 
 same territorial division to be by him dealt with according to law. 
 
 629A. If the building, receptacle or place in which such thing as 
 aforesaid is reputed to be is in some other county or territorial division, 
 the justice may, nevertheless, issue his warrant in like form modified ac- 
 cording to the circumstances, and such search warrant may be executed in 
 such other county or territorial division upon being endorsed by some jus- 
 tice of that county or territorial division, such endorsement to be in form 
 2 A, or to the like effect. (Added by 8-9 Edw. VII., c. 9, s. 2.) 
 
 630. Execution of search warrant. Every search warrant shall be 
 executed by day, unless the justice shall by the warrant authorize the con- 
 stable or other person to execute it at night. 
 
 2. Every search warrant may be in form 2, or to the like effect. 
 
 631. Detention of things seized; and their restoration. When any 
 such thing is seized and brought before a justice, he may detain it. taking 
 reasonable care to preserve it till the conclusion of the investigation, and, 
 if any one is committed for trial, he may order it further to be detained 
 for the purpose of evidence on the trial. 
 
 2. If no one is committed, the justice shall direct such thing to be 
 restored to the person from whom it was taken, except in the cases next 
 hereinafter mentioned, unless he is authorized or required by law to dis- 
 pose of it otherwise.
 
 WARRANTS. 175 
 
 It is the duty of a peace officer executing a search warrant to 
 have it with him at that time. Fanning v. Gougli, IS C'. C. C. 
 66. 
 
 A search warrant is not an " order " under the statute, R. S. 
 Nova Scotia, 1900, ch. 40, sec. 6, under which convictions and or- 
 ders must be quashed before actions can be brought in respect of 
 their enforcement. Johnston v. McDougall, 17 C. C. C. 58.
 
 176 PRELIMINARY INQUIRY. 
 
 CHAPTER VII. 
 
 PRELIMINARY INQUIRY. 
 Part XIV. of the Criminal Code. 
 
 In the previous chapter, we dealt with matters of procedure 
 relating to the procuring of the attendance of persons accused of 
 indictable offences before a justice, either by summons or by 
 warrant. 
 
 We will now proceed to discuss the nature of the proceedings 
 when the accused is before the justice. Such persons may so 
 come either of their own volition, or by summons, or by being 
 arrested on a warrant. It is then the duty of the magistrate to 
 inquire into the matters charged against such persons. For this 
 purpose, he may summon witnesses to attend before him; and, if 
 they neglect to so attend, after being summoned, upon proof being 
 made to him on oath of the service of the summons and that the 
 person summoned is likely to give material evidence, the justice 
 may issue a warrant to bring such person before him. This 
 warrant may be executed anywhere within the territorial jurisdic- 
 tion of the justice, or if necessary it can be backed, or endorsed, 
 as provided by sec. 662, and executed anywhere in the Province 
 out of such jurisdiction. 
 
 And, if the justice is satisfied by evidence on oath that any 
 person within the Province likely to give evidence, either for the 
 prosecution or for the accused, will not attend to give evidence 
 without being compelled to do so, then, instead of issuing a sum- 
 mons, he may issue a warrant in the first instance. This warrant 
 can be executed anywhere within the jurisdiction of the justice, 
 or if necessary be backed, or endorsed, as provided by sec. 662. 
 
 Any person residing anywhere in Canada out of the Province, 
 and who is not in the Province, who is likely to give material 
 evidence, either for the prosecution or for the defence, may be 
 subpO2naed to attend the inquiry, such subpO2na being obtained 
 by order of a Judge. And, if anyone served with such subpoena 
 fails to attend the hearing and to obey the subpoena, he may, upon 
 proof of the service of the subpoena, and his not offering any just 
 excuse for his non-attendance, be arrested on a warrant issued for 
 that purpose, and this warrant can be executed anywhere in 
 Canada upon being properly backed or endorsed.
 
 PROCEDURE ON APPEARANCE BEFORE JUSTICES. 177 
 
 A justice has wide powers in holding a preliminary inquiry; 
 he may regulate the course of the inquiry in any way which may 
 appear to him desirable, and which is not inconsistent with the 
 provisions of the Code. 
 
 PROCEDURE ON APPEARANCE OF ACCUSED BEFORE JUSTICE. 
 Jurisdiction. 
 
 668. When any person accused of an indictable offence is before a 
 justice, whether voluntarily or upon summons, or after being apprehended 
 with or without warrant, or while in custody for the same or any other 
 offence, the justice shall proceed to inquire into the matters charged against 
 such person in the manner hereinafter directed. 
 
 The justice cannot proceed in the absence of the accused even 
 though he be represented by counsel or solicitor, R v. Lepine, 
 (1900) 4 C. C. C. 145; R. v. Commins, 4 D. & E. M. C. 94, 8 D. 
 & E. 344; R. v. Paine, 5 Mod. 163. 
 
 If the magistrate on an application for process erroneously 
 holds that the offence is not indictable, and that he, therefore, has 
 no jurisdiction to hold a preliminary inquiry in respect thereof, 
 a mandamus will lie to compel him to do so. R. v. Meehcm, 
 (1902) 5 0. C. C. 312. 
 
 " If the magistrate has not exercised his jurisdiction, this 
 Court will compel him to do so, for parties have a right to his 
 exercise of that jurisdiction, and he has no right to refuse to do 
 so. But, if it has been exercised, however erroneously, this Court, 
 which is not a Court of Appeal from the magistrate, has no power 
 whatever to correct or review his exercise of his jurisdiction. 
 LORD COLERIDGE, in Ex parte McMahon, 48 J. P. 70. 
 
 " There is a broad distinction between magistrates declin- 
 ing to exercise jurisdiction, and exercising it honestly, but er- 
 roneously." Per MATTHEW, J., Ibid. 
 
 If the duty is of a judicial character, its performance will be 
 enforced only where it has been refused, and not where it has 
 been improperly performed. R. v. Middlesex JJ., (1839) 9 A. 
 & E. 540, at p. 546; R. v. Richards, (1851) 20 L. J. Q. B. 351. 
 
 WTiere the magistrate conducted the hearing as a preliminary 
 inquiry, binding over all the witnesses to give evidence in a 
 superior Court, and at the conclusion of the examination of the 
 witnesses for the prosecution addressed the defendant as provided 
 
 C.C.P. 12
 
 178 COURSES OPEN ON PRELIMINARY INQUIRY. 
 
 by sec. 591 (now sec. 684), then, after hearing the evidence for 
 the defence, without objection, convicted the defendant of com- 
 mon assault and fined him. Held, that the conviction was bad. 
 Ex parte Duffy, (1901) 8 C. C. C. 277. 
 
 The above is an example of a magistrate mixing up a sum- 
 mary trial with a preliminary inquiry. 
 
 In a preliminary inquiry, there are three courses for a justice 
 to follow: 
 
 (1) If, after he has heard the whole of the evidence, he is of 
 the opinion that no sufficient case is made out to put the accused 
 upon his trial, he should discharge him. See sec. 687 of the Code. 
 
 (2) If, on the other hand, the justice thinks that the evidence 
 is sufficient to put the accused on his trial, he should then commit 
 him for trial by a warrant of commitment. See sec. 690 of the 
 Oode. 
 
 (3) If the offence charged is not treason or an offence punish- 
 able with death, or an offence under sees. 76 to 86 inclusive of 
 the Code, but is punishable by imprisonment for five years or 
 more, and, in the opinion of the justice, the evidence adduced is 
 sufficient to put the accused on his trial, " but does not furnish 
 such a strong presumption of guilt as to warrant his committal 
 for trial," the justice, with some other justice, or a police magis- 
 trate alone, may, instead of issuing a warrant of commitment, 
 admit the accused to bail upon his producing sureties to the satis- 
 faction of the justices, or police magistrate, sufficient to ensure 
 his appearance at his trial. But, if the offence is punishable by 
 imprisonment for a term less than five years, the justice may 
 alone grant bail in such a case. See sec. 696 of the Code. 
 
 The provisions relating to preliminary hearings of indictable 
 offences would seem to be inapplicable when the accused is a cor- 
 poration, because the magistrate could not commit the accused to 
 gaol for trial, no matter how clear the evidence might be. See, 
 however, p. 150, supra, as to this point. 
 
 Magistrates or justices have no authority to grant bail for a 
 person actually committed for trial under sea 690. Bail in such 
 cases can alone be granted by a Judge of a Supreme Court, or of 
 a~ County Court. See sec. 700 of the Code. 
 
 "Much latitude is contemplated in the course of this pre- 
 liminary investigation, both in the way of varying and amending,
 
 COURSES OPEN OX PRELIMINARY INQUIRY. 179 
 
 and in the reception of evidence, so that, the scope of the inquiry 
 may be enlarged, and matters touched upon beyond the scope of 
 the original charge. This consideration has been overlooked in 
 regard to many of the cases cited. I mean the wide distinction 
 which exists between the magistrate who has plenary jurisdiction 
 to try the offence in a summary way, and the justice who is deal- 
 ing with a preliminary inquiry in respect to an indictable offence 
 which is to be passed on to another tribunal for trial. The dis- 
 tinction is adverted to very clearly by LORD EUSSELL. C.J., in The 
 Queen v. Brown, [1895] 1 Q. B. 119, at pp. 126 and 127." BOYD, 
 C., at p. 91, in R. v. Phillips, (1906) 11 C. C. C. 89. 
 
 The refusal of a magistrate holding a preliminary inquiry 
 to order particulars in a general charge of " conspiracy to defraud 
 the public " is not a ground for prohibition. Ibid. 
 
 An information laid in general terms charging that the accused 
 did in specified years " conspire with others whose names are un- 
 known, by deceit, falsehood and other fraudulent means to de- 
 fraud the public," sufficiently states an offence under the Code, 
 sec. 394 (now sec. 444), to give jurisdiction to a magistrate to 
 hold a preliminary inquir} r . Ibid. 
 
 As to particulars being ordered in proceeding upon an indict- 
 ment, see sees. 859, 860 and 863 of the Code. 
 
 The magistrate who holds a preliminary inquiry on a charge 
 p referred may commit an accused person, on any one or more 
 
 ?t" MMH ^ M ^ MM M"T M ^^H" H " IM ?*^ HMMH ' >MIVHIIHBMM ^ > ^ HMn ^ B *^ n "^ B ^ MH>m>>ai " l ^ HMMnB " >> ^* n<M *' H<MIM ^ M ^*"7 HI 7^ k 
 
 charges disclosed by the evidence. R. \. Maoney, (1905), 11 C. 
 C. C. 3337" 
 
 " There is no law which prohibits a justice making the prelim- 
 inary investigation from committing the prisoner for trial for sev- 
 eral different indictable offences the commission of which is dis- 
 closed by the evidence. He is then_merely putting the prisoner on 
 his trial. His duty 'is to inquire into the matters charged against 
 the prisoner. After the inquiry has been made the justicR should 
 discharge the prisoner if the evidence rloes nn|. -justify his further 
 detention^. But, if the evidence is sufficient to put him on trial, 
 the justice is obliged to commit him for trial. The evidence may 
 justify him to commit on the original charge made in thq informa- 
 tion, or some one, or more, indictable offences." MADORE, J., at 
 p~:^4, Ibid.
 
 180 PROCEDURE ON PRELIMINARY INQUIRY. 
 
 Magistrates conducting a preliminary inquiry must not on 
 its conclusion convict the accused of a lesser offenqe over which 
 they may have summary jurisdiction, although such offence was 
 proved by the evidence adduced. R. v. Mines, (1894) 1 C. C. C. 
 217. 
 
 It appears that in this case, R. v. Mines, the magistrates' juris- 
 diction was founded upon an information charging the defendant 
 with shooting with intent to murder. The magistrates were thus 
 charged with the duty of investigating that offence, and commit- 
 ting for trial if they found a prima facie case had been proved. 
 Not finding sufficient evidence to warrant this course they adopted 
 the expedient of seeking to punish the defendant in a short way 
 as if they were conducting a summary trial, and convicted the 
 defendant of " procuring a revolver with intent thereby unlaw- 
 fully to do injury to one J. S." 
 
 BOYD, C., in delivering judgment said, p. 218: "The jurisdic- 
 tion invoked was to commit for trial; they of their own motion 
 changed this at the close of the case into jurisdiction to convict. 
 That is an unwarrantable course ; to convict on a charge not form- 
 ulated, as to which the evidence was not addressed, upon which the 
 defendant was not called to make his defence, and as to which 
 no complaint was laid before them." Ibid. See also R. v. Dungey, 
 5 C. C. C. 38, p. 182, post. 
 
 " Seirible, an accused person may upon a preliminary inquiry 
 waive the preliminary examination into the charge, and consent 
 to be committed for trial without any depositions being taken/' 
 
 This statement is from the head-note in R. v. Gibson, (1896) 
 3 G. C. G. 451. There is nothing in either the judgment of 
 MEAGHER/J., or GRAHAM, E.J., which would warrant this con- 
 clusion being laid down as a legal proposition. GRAHAM, E.J., 
 does not even refer to the point. Ail that MEAGHER, J., says at 
 page 461, is, " JNor is there any provision ^m the iJodej enabling 
 an accused party to waive the preliminary 'examination and con- 
 sent to be committed for trial. Such a course would, I suppose, 
 be open to the accused/' 
 
 It is, however, submitted that such a course is not open and 
 would be entirely opposed both to the letter and the spirit of the 
 enactments in the Code relating to preliminary inquiry. The in- 
 troduction of such a loose, unauthorized mode of conducting an 
 inquiry into an indictable offence is to be deprecated.
 
 PROCEDURE ON PRELIMINARY INQUIRY. 181 
 
 As there is no provision in the Oode enabling an accused party 
 to waive the preliminary inquiry^ it is probable that such a pro- 
 vision was purposely omitted. 
 
 Section 66.8 of the Code specifically provides that when any 
 person accused of an indictable offence is before a justice . . . 
 " the justice shall proceed to inquire into the matters charged 
 against such (person in the manner hereinafter directed." One 
 need not stop to consider the directions as contained in the sections 
 of the Code immediately following 668 as to enlarging the hear- 
 ing, and so on, but pass on to section 682, where it is laid down 
 that " where the accused is before a justice holding an inquiry, 
 such justice shall take the evidence of the witnesses called on the 
 part of the prosecution." This is apparently imperative. Such 
 evidence shall be given upon oath, and in the presence of the ac- 
 cused, and shall be taken down in writing and read over and 
 signed, when not taken in shorthand. 
 
 The justice is not only required to take the evidence; but, 
 before he can either discharge the accused or commit him for trial, 
 he must base or form his opinion, in the former case, " upon the 
 whole of the evidence," and in the latter where he " thinks that 
 the evidence is sufficient " to put the accused on his trial.. ( Vide 
 sec. 690). 
 
 One can trace these provisions of the Code, Part XIV., relat- 
 ing to preliminary inquiries, back to the Imperial Act, 11 and 
 12 Vic., ch. 42, where these provisions had their origin, and 
 nothing will be found to warrant any such suggestion, either by 
 decided cases, or by statutory enactment, that " an accused per- 
 son can waive examination of witnesses upon a preliminary in- 
 quiry.^ 
 
 The provisions of the Code relating to preliminary investiga- 
 tion into indictable offences are very necessary and most essential 
 to the proper administration of justice, and it is highly important 
 that magistrates should avoid any departure from the same. 
 
 The evidence in a preliminary inquiry must be taken in the 
 presence of the justice. Where a magistrate swore the witnesses, 
 and they were then taken into another room and their evidence in 
 chief taken in shorthand by a stenographer, and not in the pre- 
 sence of the magistrate, such depositions were illegally taken, 
 although the counsel for the accused had the opportunity of after- 
 wards cross-examining the witness before the magistrate. R. 
 v. Traynor, (1901) 4 0. C. C. 410.
 
 182 PROCEDURE OX PRELIMINARY INQUIRY. 
 
 It is not competent for magistrates, where an information 
 charges an offence which they have no jurisdiction to try sum- 
 marily, to convert the charge into one which they have jurisdic- 
 tion to try, and so to try it on the original information. R. v. 
 Dungey, (1901) 5 C. C. C. 38. 
 
 Where a magistrate is applied to for process in respect of an 
 indictable offence which cannot be dealt with summarily, no fees 
 can be demanded by him therefor. R. v. Meehan (No. 2], (1002) 
 5 C. 0. C. 312. 
 
 A person discharged by a justice on a preliminary inquiry for 
 an indictable offence may be summoned again before the same, or 
 another justice, on a fresh information for the same offence. If 
 the accused is 'committed for trial on the second inquiry the 
 depositions on the first, when accused is discharged, need not 
 be transmitted to the clerk of the peace. E. v. Hannay, (1905) 
 11 C. C. C. 23; R. v. Burl-e, 19 C. C. C. 141. 
 
 There is no doubt that a charge dismissed by one magistrate 
 may be heard by another. MARTIN, J., p. 25, R. v. Hannay, supra. 
 
 A preliminary inquiry is, of course, as its name implies, not 
 final in its nature. R. v. Guerin, 16 Cox 596-601. 
 
 At common law a dismissal by magistrates is not tantamount 
 to an acquittal uipon indictment. R. v. Waters, 12 Cox 390. 
 
 But under the Oode in summary trials for indictable offences 
 under Part XVI., by setes. 790 and 791, an acquittal is a bar to a 
 charge upon a fresh information for the same offence. R. v. 
 Cameron, (1901) 4 C. C. 0. 385. 
 
 Magistrates and justices should bear in mind the difference 
 between holding a preliminary' inquiry under Part XIV.. and try- 
 ing a case under Parts XV. and XVI. of the Code. 
 
 Under Part XIV. the proceedings are of the nature of an 
 inquiry, to see whether the accused should be tried for the offence 
 charged against him before another tribunal. In such an inquiry, 
 they are not concerned with the guilt or innocence of the accused. 
 and are not called upon to make any pronouncement, respecting- 
 the same. If in the opinion of the justice a sufficient case is not 
 made out to put the accused on trial, then he should be discharged. 
 On the other hand, if of the opinion that the evidence is sufficient 
 to put the accused upon his trial, then the justice shall commit 
 him for trial by a warrant of commitment or grant bail as permit- 
 ted by section 696.
 
 PROCEDURE ON PRELIMINARY INQUIRY. 183 
 
 He has only to find evidence of a probable case of guilt to jus- 
 tify the committal for trial, and has not to deal with the prepon- 
 derance of testimony and any donbt should be resolved in favour 
 of the committal. R. v. Odell, 22 C. C. C. 39. 
 
 Under Parts XV. and XVI., the justice is to ascertain from the 
 evidence as to whether or not the accused is guilty of the offence 
 with which he is charged, and any reasonable doubt should be re- 
 solved in favour of the accused. 
 
 Under Part XV., relating to summary convictions, the justice, 
 having heard what each party has to say, and the witnesses and 
 evidence adduced, shall consider the whole matter and determine 
 the same, and convict or make an order against the defendant, or 
 dismiss the information or complaint as the case may be. This 
 means a final determination of the matter so far as the justice is 
 concerned. See sec. 726. 
 
 If the justice dismisses an information under Part XV. he 
 may, when so required, make an order of dismissal and give the 
 defendant a certificate. This certificate when rproduced shall 
 without further proof be a bar to any subsequent information or 
 complaint for the same matter against the defendant. See sec. 730 
 of the Oode. 
 
 Under Part XVI. relating to summary trials of indictable of- 
 fences, the proceedings, so far as the final results are concerned, are 
 identical with a trial upon an indictment before a judge and jury, 
 except that the magistrate acts as both judge and jury. If he finds 
 the charge proved, he then convicts the accused of the offence with 
 which he is charged, and commits the accused to gaol or otherwise 
 penalizes him as he sees fit. And such conviction shall have the 
 same effect as a conviction upon an indictment for the same offence. 
 See sec. 791. If the magistrate finds the offence not proved, he 
 shall dismiss the charge, and make out and deliver to the person 
 charged a certificate of dismissal. See sec. 790. 
 
 And by sec. 792, every person who obtains a certificate of dis- 
 missal, or is 'convicted, under the provisions of this part, shall 
 be released from all further or other criminal proceedings for the 
 same cause. 
 
 We now resume the consideration of Part XIV. 
 
 " It has never been contended that the discharge of a person 
 accused of a felony committed within the Province when brought 
 up before a justice of the peace for examination, whether such 
 (Tischarge should be attributable to tne infirmity 01 the judgment of
 
 184 PROCEDURE ON PRELIMINARY INQUIRY. 
 
 the justice, or the insufficiency of the evidence adduced before him, 
 operates as a bar to the same person being again brought before 
 another justice and committed upon the same charge, upon Jhe_ 
 same or different evidence." G WYNNE, J., in R. v. Morton, 19 
 (J. P. 9, at p. 26. 
 
 On a preliminary inquiry before two justices, if one decides in 
 favor of committal and the other to dismiss, the preferable course 
 is to adjourn the inquiry, to be heard de novo after calling in 
 another justice or justices. 
 
 The disagreement of two justices holding a preliminary in- 
 quiry is not equivalent to a dismissal of the charge, although no 
 adjournment is made and nothing further is done in the prosecu- 
 tion. 
 
 The justices might perhaps have been compelled by mandamus 
 to make an order whereby the preliminary inquiry would be ter- 
 minated either by a dismissal of the charge, or the committal of 
 the accused for trial. Durand v. Forrester, (1908) 15 C. C. C. 
 125, 18 Man. R. 444, and see Kinnis v. Groves, 67 L. J. Q. B. 
 584, and Bagg v. Colquhoun, [1904] 1 K. B. 556, and Baxter 
 V. Gordon, 13 0. L. B. 598. 
 
 When an accused person is summoned to appear before a justice 
 of the peace having jurisdiction to conduct the proceedings without 
 associate justices, other justices of the peace are not entitled to 
 interfere in the preliminary inquiry, or to be associated with the 
 summoning justice except at the latter^ request. R. v. McRae, 
 (1897) 2 C. C. C. 49. 
 
 If it is made to appear to the justice that there is a reasonable 
 necessity for more specific information to identify the transaction 
 referred to in the complaint, the justice may, on the application of 
 the accused, order that further and better particulars should be 
 given, but such an order is entirely in the discretion of the justice. 
 R. v. France,. (1898) 1 C. 0. C. 321, and see R. v. Stapylton, 8 
 Cox, 69. 
 
 The accused upon arrest shewed signs of insanity. The magis- 
 trate, upon being advised of this fact by the police officers, ad- 
 journed the preliminary hearing and directed her commitment for 
 the purpose of medical examination without having the accused 
 before him. Held, the prisoner could only be remanded after hav- 
 ing been personally brought before the justice. Re Sarault, 
 (1905) 9 C. C. C. 48. Distinguished in R. v. Bouchard, 20 C. C. 
 C. 95.
 
 IRREGULARITIES, DEFECTS AND VARIANCES. 185 
 
 A preliminary inquiry in a criminal matter commenced before 
 one magistrate cannot be continued by another. But, if 7 the magis- 
 trate who commenced the inquiry dies, or is deposed from office, or 
 resigns or goes abroad, another magistrate may act, but he must 
 commence de novo. Bertrand v. Angers, Q. R. 21 S. C. 213. ~~ 
 
 IRREGULARITIES AND VARIANCES. 
 
 669. No irregularity or defect in the substance or form of the sum- 
 mons or warrant, and no variance between the charge contained in the 
 summons or warrant and the charge contained in the information, or be- 
 tween either and the evidence adduced on the part of the prosecution at 
 the inquiry, shall affect the validity of any proceeding at or subsequent 
 to the hearing. 
 
 670. If it appears to the justice that the person charged has been 
 deceived or misled by any such variance in any summons or warrant, he 
 may adjourn the, hearing of the case to some future day, and in the mean- 
 time may remand such <person, or admit him to bail as hereinafter men- 
 tioned. 
 
 An information and warrant of arrest thereunder, charging the 
 accused as an accessory to the violation of a statute named, without 
 specifying the fact as to which he is alleged to be an accessory, is 
 void for uncertainty. 
 
 Such a warrant charges no offence, and neither it nor a remand 
 thereon is validated by sec. 578 (now sec. 669) of the Code. R. v. 
 H-oMey, (1893) 4 C. C. C. 510. 
 
 If the information incorrectly describes the ownership of any 
 property, Ralph v. Hurrell, 44 L. J. M. C. 145, or the date of the 
 offence or a street number is incorrectly stated, the information 
 should be amended. Mayor of Exeter v. Heamon, 37 L. T. 535 ; 
 R. v. Crawford, 20 O. C. C. 49. 
 
 But where the wrong person is summoned it is otherwise; in 
 such a case there should be a new summons. Oxford v. Sarikey, 54 
 J. P. 564. 
 
 In R. v. Davis, 20 C. C. C. 293, the information and warrant 
 describedi the accused as " Big Boy of Calgary," and, before plea, 
 the information was amended substituting the right name "Wil- 
 liam Davis," without being resworn. Held, that the magistrate 
 had no jurisdiction to proceed on the amended information in the 
 face of the objection then taken that there was no sworn inform- 
 ation laid against the accused. 
 
 The charge of stealing "in or from a building" is for one 
 O'ffence only, and is not, because of the disjunctive, void for dup- 
 licity or uncertainty. R. v. White, (1901) 4 C. C. C. 430.
 
 186 PROCURING ATTENDANCE OF WITNESSES. 
 
 A conviction under the Army Act for "buying, exchanging, 
 taking in pawn, detaining or receiving" a war medal from a 
 soldier, held as charging one offence only, and not bad for un- 
 certainty. R. v. Brine, (1904) 8 C. 0. C. 54. 
 
 PROCURING ATTENDANCE OF WITNESSES. 
 
 671. If it appears to the justice that any person being or residing 
 within the province is likely to give material evidence either for the pro- 
 secution or for the accused, on such inquiry, he may issue a summons under 
 his hand, requiring such person to appear before him at a time and place 
 mentioned therein to give evidence respecting the charge, and to bring with 
 him any documents in his possession or under his control relating thereto. 
 
 2. Such summons may be in form 11, or to tbe like effect. 
 
 672. Every such summons shall be served by a constable or other 
 peace officer upon the person to whom it is directed either personally, or, 
 if such person cannot conveniently be met with, by leaving it for him at 
 his last or most usual place of abode with some inmate thereof apparently 
 not under sixteen years of age. 
 
 673. If any one to whom such last-mentioned summons is directed 
 does not appear at the time and place appointed thereby, and no just 
 excuse is offered for such non-appearance, then after proof upon oath that 
 such summons has been served as aforesaid, or that the person to whom 
 the summons is directed is keeping out of the way to avoid service, the 
 justice before whom such person ought to have appeared, if satisfied by 
 proof on oath that such person is likely to give material evidence, may 
 issue a warrant under his hand to bring such person at a time and place 
 to be therein mentioned before him or any other justice in order to testify 
 as aforesaid. 
 
 2. The warrant may be in form 12, or to the like effect. 
 
 3. Such warrant may be executed anywhere within the territorial jur- 
 isdiction of the justice by whom it is issued, or, if necessary, endorsed as 
 provided in section six hundred and sixty-two and executed anywhere in 
 the province out of such jurisdiction. 
 
 It would seem that the magistrate has power to bring before 
 him any witnesses who may be able to give material evidence on 
 behalf of the defendant, 3 Just. Coke, 79; 4 Bla. Com. 359. 
 
 Only the justice before whom the information is laid has auth- 
 ority to issue a summons for a witness under this section (671). 
 It gives no authority to a justice who is a stranger to the proceed- 
 ings instituted to summon a witness to appear before the justice 
 who took the information. Bryne v. Arnold, 24 X. B. E. 161. 
 
 A justice cannot be ordered to attend at the house of an infirm 
 witness to take his depositions. Ex parte Kimbalton, 25 J. P. 759. 
 5 L. T. 347. 
 
 This last case applies to the trial of offences under Summary 
 Convictions, Part XV. of the Code. 
 
 As to indictable offences it is provided by sec. 995 of the Code 
 that the evidence of any person dangerously ill may be taken under
 
 TAKING EVIDENCE OF SICK PERSONS. 187 
 
 commission, and this either at the instance of the Crown, or of 
 the prisoner or defendant. The Commissioner is appointed by the 
 order of a Judge. The provision of this section can toe invoked in 
 a preliminary inquiry. See R. v. Verral, 6 C. O. C. 325, 
 
 At the trial of an indictable offence the presiding Judge may, 
 with the consent of counsel for the Crown and for the prisoner 
 respectively, adjourn the hearing to a private house within the 
 same count}' tor the purpose of taking there the evidence oT* a 
 witness who is too ill, to be moved therefrom, and may order that 
 the Court and jury proceed there for that purpose,. R. v. Roger?, 
 (1902) 6 C. C. C. 419. 
 
 In the above case the trial Judge, HANNINGTON, J., sitting in 
 appeal, said, " Besides, as the case shews, I took the precaution to 
 obtain the consent of the prisoner's counsel to what was done, and, 
 as this is a matter not going to the jurisdiction of the Court, the 
 prisoner is bound by that." 
 
 Two of the other Judges, McLEOD and GREGORY, JJ., also seem 
 to base their judgment upon the fact that the course adopted was 
 by consent of the prisoner's counsel. Query, if counsel had not 
 consented? This seems to be answered by BARKER, J., who said: 
 " This trial was properly commenced when the learned Judge 
 thought that it was in the interest of the administration of justice 
 to adjourn the Cburt to another plaice. I think that he had the 
 right to do it." 
 
 If it is in the interest of justice to adjourn the Court to a 
 place other than where it usually sits, for the purpose of examining 
 a witness who is too ill to attend the Court, and the prisoner is 
 present at such examination, and, if he is represented by counsel, 
 and his counsel is also present, and full opportunity is given for 
 the cross-examination of the witness, there seems nothing to pre- 
 vent such a proceeding so far as reason and law can provide, it 
 being done "in the interest of justice." There is no provision in 
 the Code against such a proceeding. 
 
 Besides, such a course of action is 'permissible in the conduct of 
 a preliminary inquiry, by special provision, see sub-sec, (c) of sec. 
 679 of the Code, post, where it is provided that the justice may 
 adjourn the hearing of the matter " from time to time, and change 
 the place of hearing if, from the absence of witnesses, the inability 
 of a witness, who is ill, to attend at the place where the justice 
 usually sits, or from any other reasonable cause it appears desirable 
 to do so."
 
 188 EXAMINATION OF WITNESSES. 
 
 This 'course has been taken by the author in a preliminary hear- 
 ing where a witness was so badly injured that he could not attend 
 the Court, and an adjournment was had to the house of the wit- 
 ness, and the evidence taken in his bed-room, the prisoner and his 
 counsel being present and full opportunity for cross-examination 
 given. Evidence has also been taken in this way at the bedside of 
 a patient in hospital, the prisoner and hie counsel being present. 
 
 The whole proceedings of the examination should be in the 
 presence and hearing of the accused and of the justice. See R. v. 
 Trevane, (1902) 6 C, C. C. 125, 4 0. L. E. 875. R. v. Paine, 5 
 Mod. 163; R. v. Commins, 4 D. & E. M. Cl 94, 8 D. & E. 344. 
 
 The witness should be informed as to the purpose for which he 
 is required to give evidence, or, in other words, that there is a 
 person under charge against whom he is required to give evidence. 
 Cropper v. Horton, 4 D. & E. M. C. 42, 8 D. & E. 167. 
 
 The summons to the witness issued under sec. 671, form 11, 
 should be directed to the witness, and a short statement of the 
 offence with which the accused is charged similar to that in the 
 summons, or warrant, should be set out, and the time and place 
 where the witness is to attend. If he is to bring with him any 
 documents or papers, this should be so stated, and the documents, 
 or papers, specified in such a manner by name and date or other- 
 wise, that they can be identified to the witness. This is called 
 a subpcena duces iecum, which commands him to attend with the 
 documents in question. It is no excuse that the legal custody of 
 the instrument belongs to another, if it be in the actual custody 
 of the witness. He must bring it with him and leave to the Court 
 the decision upon any objection against its production. Amey v. 
 Long, 9 East. 485. 
 
 If the document requires no proof from the witness, and the 
 party by whom he is called does not wish to examine him, he need 
 not be sworn, and, if sworn by mistake, he cannot be cross- 
 examined. Perry v. Gibson, 1 A. & E. 48. 
 
 Every summons for a witness shall be served by a constable, or 
 other peace officer, either personally upon the person to whom it 
 is directed, or by leaving it for him at his last or most usual place 
 of abode with some inmate thereof apparently not under sixteen 
 years of age. 
 
 The mode of service of such a summons is practically the same 
 as that of a summons issued against an offender, and for further 
 particulars as to such service, see the last chapter.
 
 SECURING ATTENDANCE OF WITNESSES. 189 
 
 If the witness fails to obey the summons, then, after proof 
 upon oath, (a) that such summons has been served as aforesaid, 
 (&) or that the person to whom the summons is directed is keep- 
 ing out of the way to avoid service, (c) if satisfied by iproof on 
 oath that such person is likely to give material evidence, the 
 justice before whom such person ought to have appeared may issue 
 a warrant to bring such person at a time and place to be therein 
 mentioned before him or any other justice to testify. The warrant 
 is to be in Form 12, and can be executed anywhere in the terri- 
 torial jurisdiction of the justice by whom it is issued, or if neces- 
 sary, be endorsed, or backed, as provided in sec. 662 of the Code, 
 and executed anywhere in the province out of such jurisdiction. 
 
 Where a magistrate had refused to issue a warrant for a wit- 
 ness, MEAGHER, J., in R. v. Clements, (1901) 4 0. O. C. 553, at 
 p. 559, said: 
 
 " I shall assume that the magistrate's conclusion was erroneous. 
 I do so for the present purposes only, and not because I think the 
 law is so. I do not wish to be understood as giving an opinion 
 one way or the other, but may say that my inclination is to hold 
 that he has a discretion in the matter and, although the reason for 
 his conclusion may not have been sound, other sufficient reasons 
 may have existed which justified the refusal of the application. It 
 can be readily seen that, if the magistrate is bound to issue a war- 
 rant in every instance, and for every witness who fails to yield 
 obedience to a summons to appear and testify, the defendant is 
 possessed of a powerful weapon by which he may effectively delay 
 the trial, and especially so if he summons a party who colludes 
 with him and agrees not to appear upon the summons." 
 
 The proceedings in R. v. Clements were under the N". S. Liquor 
 License Act, but the reasoning of MEAGHER, J., equally applies 
 to preliminary inquiries under the Code, and it is submitted that 
 the wording of sec. 673 strengthens the view that the question 
 of issuing the warrant is one in the discretion of the justice. 
 
 SECURING ATTENDANCE OP WITNESSES AT TRIALS. 
 
 By sec. 971 of the Code, it is provided that every witness duly 
 subpoenaed to attend and give evidence at any criminal trial before 
 any Court of criminal jurisdiction, shall be bound to attend and 
 remain in attendance throughout the trial. 
 
 Section 977 provides for compelling the attendance of wit- 
 nesses at the trial by warrant issued by the trial Judge.
 
 190 PROCEDURE AGAINST DEFAULTING WITNESS. 
 
 Section 973 provides for the apprehension of persons within 
 the province who are likely to give material evidence by warrant 
 issued by any Judge of a Superior or County Court, and for the 
 detention of such person till he gives evidence, or for his release 
 on recognizance conditioned for his appearance to give evidence. 
 
 Section 974 provides for issuing subpoenas for witnesses in 
 criminal 'cases and service of the same anywhere in Canada. 
 
 Section 975. And, if the subpcena is disobeyed, proceedings may 
 be taken by the Oourt against such witness for contempt or other- 
 wise. 
 
 And toy sec. 976 the Courts of the several provinces are de- 
 clared to be auxiliary to one another " for the /purposes of this 
 Act" (The Criminal Code), and any order, judgment or decree, 
 made by the Court issuing the writ of subpoena may be enforced, 
 or acted upon, by any Court in the province in which such witness 
 resides. 
 
 Where a police magistrate, acting within his jurisdiction, issues 
 his warrant for the arrest of a witness who has not appeared in 
 obedience to a subpoena, he ds not, in the absence of malice, liable 
 in damages, even though he may have erred as to the sufficiency of 
 the evidence to justify the arrest. The right of the police to 
 search or handcuff a (person arrested on a warrant to compel at- 
 tendance as a witness, and the duty "of the constable making 
 the arrest, is considered by MACLENNAN, J.A., in Gordon v. Deni- 
 son, 22 A. E. 315 and 24 0. E. 576. 
 
 PROCEDURE AGAINST DEFAULTING WITNESS. 
 
 674. If a person summoned as a witness under the provisions of this 
 part is brought before a justice on a warrant issued in consequence of re- 
 fusal to obey the summons, such person may be detained on such warrant 
 before the justice who issued the summons, or before any other justice in 
 and for the same 'territorial division who shall then be there, or in the 
 common gaol, or any other place of confinement, or in the custody of the 
 person having him in charge, with a view to secure his presence as a 
 witness on the day fixed for the trial ; or in the discretion of the justice 
 such person may be released on recognizance, with or without sureties, con- 
 ditioned for his appearance to give evidence as therein mentioned, and to 
 answer as for contempt for his default in not attending upon the said 
 summons. 
 
 2. The justice may, in a summary manner, examine into and dispose 
 of the charge of contempt against such person, who, if found guilty, shall 
 be liable to a fine not exceeding twenty dollars, or to imprisonment in the 
 common gaol, without hard labour, for a term not exceeding one month, or 
 to both such fine and imprisonment, and may also be ordered to pay the 
 costs incident to the service and execution of the said summons and war- 
 rant and of his detention in custody. 
 
 3. The conviction under this section may be in form 13.
 
 PROCEDURE AGAINST DEFAULTING WITNESS. 191 
 
 WARRANT FOR WITNESS. 
 
 675. If the justice is satisfied by evidence on oath that any person 
 within the province, likely to give material evidence either for the prose- 
 cution or for the accused, will not attend to give evidence without being 
 compelled so -to do, then, instead of issuing a summons, he may issue a 
 warrant in the first instance. 
 
 2. Such warrant may be in form 14, or to the like effect, and may be 
 executed anywhere within the jurisdiction of such justice, or, if necessary, 
 endorsed as provided in section six hundred and sixty-two and executed 
 anywhere in the province out of such jurisdiction. 
 
 676. If there is reason to believe that any person residing anywhere in 
 Canada out. of the province who is not within the province, is likely to give 
 material evidence either for the prosecution or for the accused, any Judge 
 of a superior Court or a County Court, on application therefor by the in- 
 formant or complainant, or the Attorney-General, or by the accused per- 
 son or his solicitor or some person authorized by the accused, may cause a 
 writ of subpoena to be issued under the seal of the Court of which he is 
 a Judge, requiring such person to appear before the justice before whom 
 the inquiry is being held or is intended to be held at a time and place 
 mentioned therein, to give evidence respecting the charge and to bring with 
 him any documents in his possession or under his control relating thereto. 
 
 2. Such subpoena shall be served personally upon the person to whom 
 it is directed, and an affidavit of such service by a person effecting the same 
 purporting to be made before a justice, shall be sufficient proof thereof. 
 
 As to enforcing the execution of process, sec. 608 of the Code 
 provides as follows: 
 
 6O8. Every Judge of the Sessions of the Peace, chairman of the Court 
 of General Sessions of the Peace, recorder, police magistrate, district mag- 
 istrate or stipendiary magistrate, whenever any resistance is offered to the 
 execution of any summons, warrant of execution or other process issued 
 by him, may enforce the due execution of the same by the means provided 
 by the law for enforcing the execution of the process of other Courts in like 
 cases. 
 
 A magistrate has no right to issue a warrant for the appre- 
 hension of a person to attend to find bail for his appearance as 
 a witness at the assizes, although it is sworn that the witness is 
 material, and had refused to obey a summons which previously 
 had been issued, to give evidence before the magistrate. Evans v. 
 Eees, 12 A. & E. 55. Such a case as the above now comes within 
 the provisions of sec. 973 of the Code. 
 
 WARRANT FOR DEFAULTING WITNESS. 
 
 677. If the person served with a subpoena as provided by the last pre- 
 ceding section, does not appear at the time and place specified therein, and 
 no just excuse is offered for his non-appearance, the justice holding the in- 
 quiry, after proof upon oath that the subpoena has been served, may issue 
 a warrant under his hand directed to any constable or peace officer in the 
 district, county or place where such person is, or to all constables or peace 
 officers in such district, county or place, directing him. them or any of 
 them to arrest such person and bring him before the said justice or any 
 other justice at a time and place mentioned in such warrant in order to 
 testify as aforesaid.
 
 192 TAKING EVIDENCE ON COMMISSION. 
 
 2. The warrant may be iii form 15, or to the like effect ; and, if neces- 
 sary, may be endorsed in the manner provided by section six hundred and 
 sixty-two and executed in a district, county or place other than the one 
 therein mentioned. 
 
 From a consideration of these sections of the Code, it will be 
 seen that no matter where a person resides, or happens to be, in 
 Canada, if there is reason to believe, and it is established upon 
 oath, that such person is likely to give material evidence, either 
 for the Grown or for the accused, such person can be brought be- 
 fore a justice holding a preliminary inquiry respecting an in- 
 dictable offence, no matter where such inquiry is being held. 
 
 Where a witness is subpoenaed to give evidence in a criminal 
 case, where the charge is for an indictable offence, he must attend 
 without pre-payment of his expenses or witness fees. R. v. Cooke, 
 1 0. & P. 322. 
 
 As a general rule, the Department of the Attorney-General in 
 each province provides the necessary money required for securing 
 the attendance of witnesses for the prosecution upon criminal 
 trials. 
 
 Not only are the Crown and the defence entitled to the pre- 
 sence of material witnesses who reside or are living in any part 
 of Canada, but also if such persons reside out of Canada, their 
 evidence either for the Crown or the defence can be secured by 
 commission under the provisions of sec. 997, as follows: 
 
 EVIDENCE BY COMMISSION. 
 
 997. Whenever it is made to appear, at the instance of the Crown, or 
 of the prisoner or defendant, to the satisfaction, of the Judge of any Su- 
 perior Court, or the Judge of a County Court having criminal jurisdiction, 
 that any person who resides out of Canada is able to give, material infor- 
 mation relating to any indictable offence for which a prosecution is pending, 
 or relating to any person accused of such offence, such Judge may, by order 
 under his hand, appoint a commissioner or commissioners to take the evi- 
 dence, upon oath, of such person. 
 
 2. Until otherwise provided by rules of Court, the practice and pro- 
 cedure in connection with the appointment of commissioners, under this 
 section, the taking of depositions by such commissioners, and the certifying 
 and return thereof, and the use of such depositions as evidence, shall be 
 as nearly as practicable the same as those which prevail in the respective 
 Courts in connection with like matters in civil causes. 
 
 3. The depositions taken by such commissioners may be used as evi- 
 dence at the trial. 
 
 4. Subject to such rules of Court or to the practice or procedure afore- 
 said, such depositions may, by the direction of the presiding Judge, be read 
 in evidence before the grand jury. 
 
 A commission to take evidence in a foreign country for use 
 upon a prosecution for an indictable offence may be ordered under
 
 TAKING EVIDENCE ON COMMISSION. 193 
 
 sec. 683 (now 997) of the Code while the preliminary inquiry is 
 proceeding. And such evidence is admissible as well at the pre- 
 liminary inquiry as before the grand jury and the petit jury on 
 the trial of the accused. R. v. Verrall, (1895) 6 C. C. C. 325. 
 
 " The time at which and the circumstances under which the 
 order may be applied for and obtained all tend to shew that the 
 evidence procured under it may be used at any stage of the in- 
 quiry at which evidence may be given, relating to the offence, 
 or to the prisoner accused of the offence." ARMOUR, C.J., p. 328. 
 IUd., and see E. v. Chetwynd, (1891) 23 N. S. R. 332, and Barsky 
 v. Serttng, 19 C. C. C. 468. 
 
 An order may be made under sec. 683 (now 997) for taking 
 in Canada, under commission, the evidence of material witnesses 
 who reside out of Canada, but are temporarily within the jurisdic- 
 tion of the Court, and about to return to their own country. R. 
 v. Baskett, (1902) 6 C. C. C. 61. 
 
 Any evidence taken under commission may be objected to at 
 the trial on the ground of the irregularity of the Commissioner's 
 appointment. The application of the procedure in civil cases by 
 sub-sec. 2 of sec. 997 does not confer a like right of appeal as in 
 civil cases from the order appointing the Commissioners. R. v. 
 Johnson, (1892) 2 B. C. E. 87. 
 
 In a prosecution for libel, it was held that the defendant was 
 not bound to anticipate his plea to the indictment, and was en- 
 titled to all the time up to his arraignment to consider whether he 
 would plead justification. The evidence proposed to be taken 
 abroad under commission being only as to that plea which had 
 only then been entered, the defendant could not have made the 
 application earlier. Commission ordered. R. v. Nicol, (1898) 
 5 C. C. C. 31. 
 
 WITNESSES REFUSING TO BE EXAMINED. 
 
 678. Whenever any person appearing, either in obedience to a sum- 
 mons or subpoena, or by virtue of a warrant, or being present and being 
 verbally required by the justice to give evidence, refuses to 'be sworn, or, 
 having been sworn, refuses to answer such questions as are put to him, 
 or refuses or neglects to produce any documents which he is required to 
 produce, or refuses to sign his depositions, without in any such case offering 
 any just excuse for such refusal, such justice may adjourn the proceedings 
 for any period not exceeding eight clear days, and may in the meantime by 
 warrant in form 16, or to the like effect, commit the person so refusing to 
 gaol, unless he sooner consents to do what is required of him. 
 
 2. If such person, upon being brought up upon such adjourned hearing, 
 again refuses to do what is required of him, the justice, if he sees fit, may 
 
 C.C.P. 13
 
 194 REFUSAL OF WITNESSES TO GIVE EVIDENCE. 
 
 again adjourn the proceedings, and commit him for the like period, and so 
 again from time to time until such person consents to do what is required 
 of him. 
 
 3. Nothing in this section shall prevent such justice from sending any 
 such case for trial, or otherwise disposing of the same in the meantime, ac- 
 cording to any other sufficient evidence taken by him. 
 
 As we have previously stated, the witness should be informed 
 as to the purpose for which he is required to give evidence. 
 
 A witness cannot be committed for refusing to answer unless 
 there is a person charged with an offence and unless he (the wit- 
 ness) is apprised of that fact and the nature of the charge. Crop- 
 per v. Norton, 4 D. & E. M. O. 42, 8 D. & R. 167. 
 
 To justify the commitment for refusing to answer a question, 
 the question put must be one upon which the party may be law- 
 fully compelled to answer, and, therefore, the commitment in such 
 a case should set forth the question and answers, if any, so that 
 the Court may be enabled to judge of their propriety. In Re 
 Hadland, 1 Dowl. & Dowl. 835. 
 
 Where a witness who was summoned by commission of a bank- 
 rupt, under the 6 Geo. IV., ch. 16, sec. 35, was required by the 
 Commissioners to read certain entries in a ledger, and on his re- 
 fusal to do so was committed by them for refusing to answer a 
 question, it was held that the request to read was neither in form, 
 nor substance, a question, and that the commitment was illegal. 
 Isaac v. Impey, 10 B. & C. 442. 
 
 A justice may commit a femme covert who was a material wit- 
 ness upon a charge of felony brought before him, and who refused 
 to appear at the Sessions to give evidence, or to find sureties for 
 her appearance. Bennet v. Watson, 3 M. & Sel. 1. 
 
 To justify a magistrate in commiting a witness under this sec- 
 tion (67S), it must appear not only that the witness refused with- 
 out just excuse to answer, but that the question asked was in some 
 way relevant to the issue. R. v. Ayotte, (1905) 9 C. C. C. 133. 
 
 Facts relevant to the issue are facts which tend either directly 
 or indirectly to prove or disprove a fact in issue or some relevant 
 fact. 
 
 Thus, facts which constitute a link in the chain of proof, or 
 affect the credit of a witness, or the admissibility of a document, 
 are relevant. Phipson on Evidence, 5th ed., p. 40.
 
 POWERS OF JUSTICES ON PRELIMINARY INQUIRY. 195 
 POWERS OF JUSTICES. 
 
 679. A justice holding a preliminary inquiry may in his discretion, 
 (a) permit or refuse permission to the prosecutor, his counsel or at- 
 torney, to address him in support of the charge, either by way of 
 opening or summing up the case, or by way of reply upon any evi- 
 dence which may be produced by the person accused; 
 (ft) receive further evidence on the part of the prosecutor after hearing 
 any evidence given on behalf of the accused ; 
 
 (c) adjourn the hearing of the matter from time to time, and change 
 the place of 'hearing, if, from the absence of witnesses, the inability 
 of a witness who is ill to attend at the place where the justice usually 
 sits, or from any other reasonable cause, it appears desirable to do 
 so, and may remand the accused, if required, by warrant in form 17 : 
 Provided that no such remand shall be for more than eight clear 
 days, the day following that on which the remand is made being 
 counted as the first day ; 
 
 (d) order that no person other than the prosecutor and accused, 
 their counsel and solicitors, shall have access to or remain in the 
 room or building in which the inquiry is held, if it appears to him 
 that the ends of justice will be best answered by so doing; 
 
 (e) regulate the course of the inquiry in any way which may appear 
 to him desirable, and which is not inconsistent with the provisions of 
 this Act. 
 
 2. If any remand under this section is for a time not exceeding three 
 clear days the justice may verbally order the constable or other person in 
 whose custody the accused then is, or any other constable or person named 
 by the justice in that behalf, to keep the accused person in his custody and 
 to bring him before him or such other justice as shall then be acting at the 
 time appointed for continuing the examination. 
 
 If the accused consents to a remand for more than eight days, 
 he thereby waives the irregularity. Re Burns' Bail, 17 C. C. C. 
 292. 
 
 When the hearing of a criminal charge had been adjourned for 
 a long period to await the result of a civil action for libel between 
 the accused and other persons, a mandamus to the magistrate to 
 proceed was granted. R. v. Evans, 62 L. T. 570. 
 
 The remand, if for more than three clear days, must be by war- 
 rant, and the accused must be present in Court when such remand 
 takes place. R. v. Sarault, (1905) 9 C. C. C. 448; R. v. Halley, 
 4 C. C. C. 510; R. v. Goulet, 20 C. 0. C. 191. 
 
 A remand for medical examination as to the insanity of the 
 accused cannot be made in the absence of the accused; he or she 
 must be present within the hearing and view of the magistrate. 
 R. v. Sarault, supra. 
 
 But, if the accused is brought before the magistrate and re- 
 manded with a view to his being examined as to his sanity, he may 
 be again remanded after eight days to await the report of the 
 physicians, although not then brought before the magistrate. R. 
 v. Bouchard, 20 C. C. C. 95.
 
 196 INQUIRY COMPLETED BY SAME JUSTICE. 
 
 Where evidence on a preliminary inquiry is commenced before 
 one justice of the peace and he is joined by another justice of the 
 peace, and the hearing is continued and concluded before the two, 
 a committal by the two is irregular because they did not jointly 
 hear all the evidence. Re Nunn, (1899) 2 C. C. C. 429. 
 
 " It is contrary to all my ideas and erperiences of justice for 
 depositions taken before one magistrate to be considered by an- 
 other magistrate sufficient evidence to commit a prisoner upon, 
 without having seen the demeanour of the witnesses when they 
 were giving their evidence, and so' being in a position to judge for 
 himself of the truth of their statements, ... I think the pro- 
 ceedings ought to be conducted throughout by the same magistrate 
 who has heard the witnesses and observed their demeanour. The 
 principle of the common law is clear upon the matter." WILLIS, 
 J., in Ee Guerin, (1888) 16 Cox 596. 
 
 The words "for continuing the examination" at the end of 
 sec. 679 have puzzled the author as well as others who have had 
 to deal with matters coming within the province of this section. 
 
 The puzzle is why these words are there in conjunction with 
 the preceding words " such other justice as shall then be acting at 
 the time appointed." 
 
 It could never have been contemplated that " continuing the 
 examination" meant that an examination already commenced be- 
 fore one justice could be continued before another, since, to 
 paraphrase what is so well expressed by MR. JUSTICE WILLIS in 
 the above quotation, " such a mode of procedure would be contrary 
 to one's ideas and experiences of justice." 
 
 Then what do the words mean ? They appear in the Imperial 
 Act, 11 & 12 Vic., ch. 42, and were incorporated in the Canadian 
 Statute, 32-33 Vic., ch. 30, sec. 42, and appear in the same way in 
 the Criminal Procedure Act, ch. 174, Eevised Statutes of Canada 
 (1887), sec. 65. 
 
 One cannot find any express decision bearing upon the question 
 as to whether an inquiry can be commenced before one justice and 
 continued' and ended before another except the cases cited. The 
 reason presumably is that no one, except through gross ignorance, 
 would think of such a proceeding, and the question has thus never 
 arisen. There should be no doubt or question about it. Surely 
 the law never contemplated such a course of action being pursued. 
 What really is meant seems to be, that if the justice who began the 
 inquiry, or examination, has not actually taken any evidence, or
 
 INQUIEY COMPLETED BY SAME JUSTICE. 197 
 
 is unable to attend through illness or absence, or has died in the 
 meantime, then the hearing will not lapse in consequence of sucn 
 event, but the same may be continued by another justice. 
 
 Not that this second justice should start where the first justice 
 left off, but that he will continue the examination by commencing 
 de novo, and proceeding as if the first examination had never been 
 held. 
 
 In the happening of such an event as that a preliminary hear- 
 ing will have to be continued by another justice, owing to the 
 absence of the justice who began the hearing, the depositions taken 
 before the first justice should be preserved intact and not de- 
 stroyed. Since, in the event of a witness who has been examined 
 before the first justice dying or leaving Canada prior to the con- 
 tinuance of the examination before the second justice, and it being 
 impossible to take his or her evidence over again, such depositions, 
 if taken in conformity with the provisions of the Code, would be 
 available for use at the trial under the provisions of sec. 999. 
 
 When an information for an indictable offence is laid before a 
 magistrate, he becomes seized of the case and no other magistrate 
 has any right to intervene and preside at the preliminary inquiry, 
 even with the consent of the first magistrate, except in case of 
 his illness or absence as provided by statute, although he may 
 invite another or others to sit with him, and sub.-sec. 3 of sec. 708 
 of the Code applies only to summary conviction proceedings under 
 Part XV. of the Code. Re Holman and Rea (No. 2), 21 C. C. C. 
 11, reversing Re Holman and Rea (No. 1), 2.1 C. C. C. 7, and fol- 
 lowing R. v. McRae, 28 0. E. 569. 
 
 JUSTICE'S DECISION. 
 
 The justice should take and complete the examination of all 
 concerned and discharge or commit the accused for trial as soon 
 as the nature of the case will permit him, but he is in all cases 
 allowed a reasonable time for this purpose before he makes his 
 final decision. See Re Ying Foy, (1909) 15 C. C. C. 14. 
 
 The time of the detainer must be no longer than is necessary 
 for such purpose, and the magistrate ought not arbitrarily to 
 commit the party. Davis v. Capper, 10 B. & C. 28. 
 
 If the examinations do not take place in proper time an action 
 will lie against the justice, and the commitment would be void ab 
 initio. Arbuckle v. Taylor, 3 Dow's Rep. at p. 184.
 
 198 DECISION OF JUSTICE AT CLOSE OF INQUIRY. 
 
 In Davis v. Capper, supra, it was fully settled that trespass 
 will lie against a magistrate for committing a party charged with 
 felony for re-examination for an unreasonable time, though with- 
 out any improper motive. 
 
 A warrant for commitment on remand for an unreasonable 
 time, i.e., beyond eight clear days (the day following that on which 
 the remand is made being counted as the first day) is wholly void. 
 
 " A commitment for further examination is not a proceeding 
 against the party, but a proceeding for his benefit. It is a pro- 
 ceeding with a view to protect him against a commitment for trial, 
 if, during a reasonable time for examination, it can be found there 
 is no ground upon which there ought to be a commitment for cus- 
 tody in order to trial. And if you were to say that, where a party 
 is committed for further examination, bail shall be required before 
 that further examination takes place, you put him to this incon- 
 venience that he must give security to stand a trial which he may 
 never have to stand." Per LORD ELDON, in Arbuckle v. Taylor, 3 
 Dow's Rep. 160, at pp. 183, 184. 
 
 Where a complaint of a criminal nature is made before jus- 
 tices, which the evidence shews to be one they have no jurisdiction 
 to determine summarily, they should either dismiss the complaint 
 or commit the person charged for trial, and not convict him of a 
 minor offence included in the offence shewn. In Re Thompson, 
 30 L. J. M. O. 19, and see R. v. Mines, 1 C. C. O. 217 ; R. v. Dun- 
 gey, 5 C. C. C. 3,8 ; Ex parte Duffy, 8 C. C. C. 277. 
 
 The examination may take place either in public or private, 
 and jhe justices may, if necessary, exclude all persons! 
 
 It has been held in England that a justice may exclude an 
 attorney, or counsel, if he likes. Cox v. Coleridge, 1 B. & C. 37; 
 Collier v. Hicks, 2 B. & Ad. 663. 
 
 The magistrate has not the same right of excluding the public 
 from the Court room when he is dealing with a summary con- 
 viction matter. Daubney v. Cooper, 10 B. & C. 277. 
 
 But the magistrate cannot exclude the accused, or refuse to 
 allow his counsel to cross-examine the witnesses. R. v. Commins, 
 4 D. & E. M. C. 94; 8 D. & R. 344; R. v. Griffiths, 16 Cox 46. 
 
 A^ justice should not exclude the counsel for the accused unless 
 for misconduct, or contempt of Court. It should never be done if 
 it can be avoided, and if done a memorandum of such fact should 
 be set out on the face of the proceedings, and reasons given for
 
 EXCLUSION OF PERSONS FROM COURT PRIVATE PROSECUTORS. 199 
 
 such exclusion. Because it is one of the conditions precedent to 
 the use at the trial of depositions taken in a preliminary inquiry 
 "that such deposition was taken in the presence of the person 
 accused, and that he, or his counsel or solicitor, if present, had 
 a full opportunity of cross-examining the witness " ; some question 
 might arise if counsel was wrongfully excluded as to the admissi- 
 bility of a deposition taken in counsel's involuntary absence. 
 
 The accused himself has, of course, the right to cross-examine 
 the witness, but, if he has .engaged counsel and the latter is ex- 
 cluded for no good reason, it might be argued that the accused 
 or his counsel had not " a full opportunity of cross-examining 
 the witness." 
 
 The section under consideration, 679 (d), specifically provides 
 that the justice may in his discretion " order that no person, other 
 than the prosecutor and accused, their counsel and solicitors, shall 
 have access to or remain in the room or building in which the in- 
 quiry is held, <fec." As to excluding the public from trial Courts, 
 see sec. 645 of the Code. 
 
 A private prosecutor is no party to a criminal prosecution, and 
 cannot insist that he or his counsel shall aid in the conduct of the 
 same when the proper Crown officer has undertaken the prosecu- 
 tion and refuses assistance from other counsel. R. v. Gilmore, 
 (1903) 7 C. 0. C. 219. 
 
 " But though it is the right of everyone to make a complaint, 
 with a view to the institution of criminal proceedings, and also 
 under certain circumstances to prefer a bill of indictment, yet the 
 prosecutor is no party to the prosecution, nor indeed bound by any 
 judgment that may be made in it. He may with the consent of 
 the proper authorities proceed in the name of the Sovereign ; but 
 against the will of both parties he has no power over or voice in 
 the proceedings." MEREDITH, J., Ibid. 
 
 But when the prosecution was instituted by a private prose- 
 cutor and he is still in charge of it, he has the same right to be 
 heard on the trial, both as to the question of guilt and the ques- 
 tion of punishment, as the Attorney-General would have on a 
 Crown prosecution. R. v. McMicken, 20 C. C. C. 334. 
 
 BAIL ON REMAND. 
 
 68O. The justice may order the accused person to be brought before 
 him, or before any other justice for the same territorial division, at any 
 time before the expiration of the time for which such person has been re- 
 manded, and the gaoler or officer in whose custody he then ,is shall duly 
 obey such order.
 
 ADMITTING TO BAIL ON EEMAND. 
 
 681. If the accused is remanded as aforesaid, the justice may dis- 
 charge him, upon his entering into a recognizance in form 18, with or 
 without sureties, in the discretion of the justice, conditioned for his ap- 
 pearance at the time and place appointed for the continuance of the ex- 
 amination. 
 
 These elements are to be taken into consideration by the jus- 
 tice in determining whether the prisoner should be admitted to 
 bail or not, viz., the gravity of the crime, the weight of the evi- 
 dence, and the severity of the punishment, with regard to the 
 probability of his appearance to take his trial. Re Robinson, 23 
 L. J. Q. B. 286 ; Re Barronet, 1 E. & B. 1 ; R. v. Scaife, 9 Dowl. 
 553. 
 
 Accomplices should never be allowed to go on bail because they 
 are so likely to abscond, notwithstanding that it is intended they 
 should give evidence for the prosecution. R. v. Beardmore, 7 C. & 
 P. 497. 
 
 At the expiration of a remand by warrant for eight clear days, 
 a further remand for another eight days and so on may be made. 
 A remand for an unreasonable time would be void. Connors v. 
 Darling, 23 TT. C. R., at pp. 547, 551. 
 
 Such further remand should be evidenced in writing under the 
 hand of the justice by endorsement on the back of the warrant of 
 commitment. 
 
 Where a person is given into 'custody without a warrant on a 
 charge of an indictable offence and is afterwards brought before a 
 magistrate, he may remand the accused without taking any evi- 
 dence upon oath. R. v. Waters, 12 Cox 390. 
 
 If a prisoner who is remanded is taken by the constable to a 
 lockup, instead of to the gaol, without any express direction by the 
 magistrate to take him to the lockup, the magistrate is not respon- 
 sible for the prisoner's sufferings from cold, &c., in the lockup. 
 Crawford v. Beattie, 39 U. C. R. 13. 
 
 A warrant of remand was signed with the addition of the 
 letters " J.P." after the signature, and contained a reference in 
 the body of it to the signer, or " some other justice " for the county. 
 Held, the warrant was good. Ex parte HilcJiie, (1906) 11 C. C. 
 C. 85. 
 
 EVIDENCE FOR PROSECUTION ON OATH. 
 
 682. When the accused is before a justice holding an inquiry, such 
 justice shall take the evHence of the witnesses called on the part of the 
 prosecution.
 
 ADMINISTERING OATHS TO WITNESSES. ' 201 
 
 2. The evidence of the said witnesses shall be given upon oath and in 
 the presence of the accused ; and the accused, his counsel or solicitor, shall 
 be entitled to cross-examine them. 
 
 3. The evidence of each witness shall be taken down in writing in the 
 form of a deposition, which may be in form 19, or to the like effect. 
 
 4. Such deposition shall in the presence of the accused, and of the jus- 
 tice, at some time before the accused is called on for his defence, be read 
 over to and signed by the witness and the justice. 
 
 5. .The signature of the justice may either be at the end of the depo- 
 sition of each witness, or at the end of several or of all the depositions in 
 such a form as to shew that the signature is meant to authenticate each 
 separate deposition. 
 
 ADMINISTERING OATHS. 
 
 By sec. 13 of " The Canada Evidence Act" it is provided that 
 " Every Court and Judge and every person having by law, or 
 consent of parties, authority to hear and receive evidence, shall 
 have power to administer an oath to every witness who is legally 
 called to give evidence before that Court, Judge or person." 
 
 The usual proceeding in administering the oath is for the 
 witness to hold the New Testament, or Bible, in his right hand, 
 which should be bare and ungloved. And the witness should be 
 addressed as follows ; " The evidence that you will give to the Court 
 touching the matters in question shall be the truth, the whole 
 truth, and nothing but the truth, So help you, God," or another 
 form, which is often used, is as follows : " You swear that you shall 
 true answer make to all such questions as may be demanded of 
 you So help you, God." 
 
 The witness then kisses the book. If the witness is a Jew, he 
 should be sworn with his hat on, and upon the Pentateuch. 
 
 The nationality and religious belief of the witness should be 
 ascertained before he is sworn. 
 
 If a witness has without objection been sworn in the usual 
 form, no subsequent objection can be taken to his testimony on 
 the ground that, being of a different faith, the oath is not in a 
 form affecting his conscience. Sells v. Hoare, 3 Brod. & Bing. 
 232, or that some other form is more bindilng. The Queen's Case, 
 2 Brod. & Bing. 284. Mohammedans are sworn on the Koran. 
 The witness places his right hand flat upon the book and putting 
 his left upon his forehead, brings his head down to the book; the 
 magistrate, or clerk, whichever administers the oath, then asks 
 him if he is bound by this ceremony to speak the truth, and the 
 'witness replies that he is. Phipson, 5th ed. 439. 
 
 Chinese are sometimes sworn by the ceremony of breaking a 
 saucer in the witness box. The person administering the oath
 
 202 ADMINISTERING OATHS TO WITNESSES. 
 
 then says : " You shall tell the truth and the whole truth ; the 
 saucer is cracked, and if you do not tell the truth, your soul will be 
 cracked like the saucer." R. v. Entrehman, Car. & M. 248. 
 
 Another form is for the witness to write several characters 
 upon paper, which he burns, praying that his soul may be simi- 
 larly burnt if he swears falsely, while the most binding oath is 
 said to consist in the witness cutting off a cock's head with a like 
 invocation. Phipson, 5th ed., 489, 440. 
 
 Held, that a Oanton Chinaman, who is not a Christian, should 
 have the " chicken oath " administered to him, instead of the paper 
 oath. R, v. Ah Wooey, (1902) 8 C. C. 0. 25. 
 
 For the form of such oath and mode of administering the same 
 vide this case. 
 
 The oath as administered to white people can also be adminis- 
 tered to Chinamen who profess Christianity, or say that it is bind- 
 ing on their conscience, and it was held, in R. v. Lee Tuck, 19 C. 
 C. C. 471, that, when a Chinese witness stated that he was a 
 Christian and asked to be sworn on the Bible, it was illegal to 
 administer the burning ,paper oath instead, and he could not be 
 convicted of perjury in respect of his evidence thus given. 
 
 " It seems to me that when a man without objection takes the 
 oath in the form ordinarily administered to persons of his race or 
 belief, as the case may be, he is then under a legal obligation to 
 speak the truth, and cannot be heard to say that he was not sworn." 
 HUNTER, C.J., at p. 471, in R. v. Lai Ping, (1904) S C. C. C. 467. 
 
 The administration of the Chinese paper oath to a Chinaman 
 at his own suggestion is binding upon him to tell the truth, other- 
 wise he lays himself open to .penalty for perjury. Ibid. 
 
 Euthenians, Buckowinians, Roumanians, Poles and Russians, 
 either Greek, or Roman Catholic, are sworn upon the crucifix. 
 
 Two candlesticks with candles in them are placed in front of 
 the witness and between the candles is placed the crucifix. The 
 candles are lighted, the witness holds up the thumb and first two 
 fingers of his right hand and the following oath is then adminis- 
 tered: "You swear by God Almighty, Father, Son and Holy 
 Ghost, and by the Virgin Mary and all that is Holy, that the evi- 
 dence you will give to the Court shall be the truth, the whole truth 
 and nothing but the truth, so help you God," The witness repeats* 
 the oath as it is administered word by word, arid at its conclusion 
 kisses the crucifix. This is the mode and manner in which the
 
 SOLEMN AFFIRMATION INSTEAD OF OATH. 203 
 
 oath is administered in all parts of Austria and Russian Poland, 
 and is used in all criminal Courts in Winnipeg. 
 
 AFFIRMATION. 
 
 By sec. 14 of the Canada Evidence Act: 
 
 14. If a person called or desiring to give evidence, objects, on grounds 
 of conscientious scruples, to take an oath, or is objected to as incompetent 
 to take an oath, such person may make the following affirmation : 
 
 " I solemnly affirm that the evidence to be given by me shall be the 
 truth, the whole truth, and nothing but the truth." 
 
 2. Upon the person making such solemn affirmation, his evidence shall 
 b* taken and have the same effect as if taken under oath. 
 
 A proper foundation must be laid to permit a witness to 
 affirm under this section, instead of taking the usual oath. It is 
 not sufficient that he should merely object to be sworn or express 
 a preference to affirm, but he must state that he objects to take an 
 oath on grounds of conscientious scruples. R. v. Deakin, 19 C. 
 0. C. 62. 
 
 But it was held by the Supreme Court of Canada, in Curry v. 
 R., 22 C. C. a 191, 48 S. C. R. 532, that a witness might pro- 
 perly be convicted of perjury, although, without being asked if 
 he had any objection to being sworn in the usual manner, but 
 without objecting to the form used, he was directed to take the 
 oath by raising his right hand instead of kissing the Bible. 
 
 Any witness whose evidence is admitted under this section 
 shall be liable to indictment and punishment for perjury in all 
 respects as iif he had been sworn. Sec. 15 (2). Witnesses who 
 affirm do so with the right hand uplifted. 
 
 The oath is usually administered in Scotland by the witness 
 (who like all witnesses stands when the oath is being administered) 
 holding up' his right hand and repeating! after the person ad- 
 ministering the oath, no book being used, " I swear by Almighty 
 God that I will speak the truth, the whole truth and nothing but 
 the truth." 
 
 WITNESSES WHO NEED NOT BE SWORN. 
 By sec. 16 of the Canada Evidence Act. 
 
 16. Where a child of tender years is offered as a witness and such 
 child does not, in the opinion of the Judge, justice, or other presiding 
 officer, understand the nature of an oath, the evidence of such child may 
 be given, if in the opinion of the Judge, justice or other presiding officer, 
 as the case may be, such child is possessed of sufficient intelligence to
 
 204 COEEOBOEATION OF EVIDENCE OF CHILDREN. 
 
 justify the reception of the evidence and understands the duty of speaking 
 the truth. 
 
 2. No case shall be decided upon such evidence alone, and such evidence 
 must be corroborated by some other material evidence. 
 
 See also sec. 1003 of the Code, which is to very nearly the 
 same effect. 
 
 COEBOBORATION. 
 
 ' Some independent material evidence must be given whiten 
 corroborates, in plain Anglo-Saxon, strengthens, the evidence of 
 the opposite or interested party. If the evidence offered ie ad- 
 missible, if it supports the evidence of the party, it is corrobora- 
 tive evidence, and it is then for the Judge, or jury, to say what 
 height is to be attached to it^ Nor is corroboration required to 
 be directed to any particular fact or part of the evidence, it is the 
 ' evidence ' of the party which is to be corroborated by some 
 ' other material evidence/ '' OSLER, J.A., at p. 170, in Radford v. 
 MacDonald, (1891) 18 A. E. 167. See Parker v. Parser, 32 C. 
 P. 113. 
 
 Where the evidence of a child is given without oath under 
 above section 16, and evidence is given for the defence, the latter 
 may be looked at for the corroboration of the child's evidence re- 
 quired byi that section : R. v. Iman Din, 18 C. C. O. 82. See also 
 R. v. McGivney, 22 C. C. 0. 222, and R. v. Mclnulty, Ib. 347, in 
 which it was held, following R. v. Whistnant, 20 0. C. C. 322, 
 that similar unsworn testimony of another child cannot be the 
 corroboration required by the statute. 
 
 In R. v. De Wolfe, 9 C. 0. C. 78, Wallace, Co.J., held that in 
 cases in which section 1003 of the Code applies, a stronger degree 
 of corroboration is called for than is required by the above sec- 
 tion 16 of the Evidence Act. 
 
 As to corroboration being necessary in certain cases before 
 conviction can be secured, see sec. 1002 of the Code. 
 
 "A mere scintilla is not sufficient. At the same time the 
 corroborating evidence need not be sufficient in itself to establish 
 the case. The direct testimony of a second witness is unnecessary^ 
 the corroboration may be afforded by circumstances." KILLAM, 
 J., in Thompson v. Coulter, (1903) 34 S. C. R. 261. 
 
 Facts which tend to render more p.robable the truth of a wit- 
 ness's testimony on any material point, are admissible in corro- 
 boration thereof, although otherwise irrelevant to the issue, and
 
 EVIDENCE OF ACCOMPLICES AND DEAF MUTES. 205 
 
 although happening before the date of the fact to be corroborated. 
 Wilcox v. Gotfrey, 26 L. T. N. S. 481. 
 
 But facts which are not more consistent with the truth of such 
 testimony than the reverse are inadmissible. The corroborative 
 facts and evidence must, however, be proved otherwise than by 
 the testimony of the witness to be corroborated. Owen v. Mober- 
 ley, 64 J. P. 8.8. And the question of the admissibility is one of 
 law for the Judge and not one of fact for the jury. Bessela v. 
 Sterm, 2 C. P. D., at p. 267. 
 
 EVIDENCE OF ACCOMPLICES. 
 
 The (practice is^ to warn the jury that they ought not to oon- 
 viict upon the evidence of' an accomplice unless they think thatTt 
 has been corroborated, but the case cannot be withdrawn from tKe 
 Jury lor want of such corroboration and on a trial by a Judge or 
 magistrate without a jury a conviction upon the evidence of an 
 accomplice will not be set aside lor want of corroboration. R y. 
 Frank] 16 0. U. II ^37. See also R. v. St. Pierre, 19 O. cTc. 
 8a; JK. v. Betchell, 19 C. C. CJ. 423^ 
 
 DEAF MUTES. 
 
 By sec. 6 of the' Canada Evidence Act a witness who is unable 
 to speak may give his evidence in any other manner in which he 
 can make it intelligible. 
 
 The evidence of a deaf mute may be, given either by signs made 
 with the fingers through an interpreter, or by writing; the latter 
 is the better mode where the witness can write, as he can then 
 write the answers to the questions put to him. See Morrison v. 
 Lennard, 3 C. & P. 127, per BEST, O.J. 
 
 The oath can be administered to these witnesses in the same 
 way. 
 
 OTHER WITNESSES. 
 
 At common law, before the enactment of the Oaths Act, 1888, 
 (Imp.), the law was that a man who had no religion whatever, or no 
 religion that could bind his conscience to speak the truth, was ex- 
 cluded from being a witness. Omicliund v. Barker, Willes' Rep. 
 at p. 549; Madan v. Qatarrach,, 7 H. & N". 360. 
 
 It was not indeed essential that a witness shall be a Christian 
 or believe in the Old Testament; it was sufficient if he believed
 
 206 EXCLUSION OF WITNESSES WHO ARE COMPETENT. 
 
 in a God, and that divine punishment would be the certain conse- 
 quence of perjury; and it seems immaterial whether the witness 
 believed that the punishment would be inflicted in this world or the 
 next. Taylor Ev., sec. 1252. Defect of religious belief is never 
 presumed, it must be proved by the party objecting. Ibid. 
 
 Mohammedans, Turks and Moors may be witnesses. 
 
 But now, as the above quoted section (14) of the Canada Evi- 
 dence Act, if a witness objects on grounds of conscientious scruples 
 to take an oath, or is objected to as incompetent to take an oath, 
 his evidence will be taken upon making the solemn affirmation 
 provided for in the section. 
 
 EXCLUSION OF WITNESSES. 
 
 Before the examination commences the Crown may demand 
 that the witnesses should retire in order that each may be ques- 
 tioned in the absence of the others. 
 
 And the same order will be made on the request of the accused, 
 but as a matter of indulgence and not of right. R. v. Vauffhan, 
 Holt 689. See R. v. Murphy, 8 C. & P. 297, and Southey v. Nash, 
 7 C. & P. 632. 
 
 It is not usual to exclude witnesses who are merely to prove 
 matters of form, medical witnesses or witnesses as to character. 
 
 COMPETENT WITNESSES. 
 
 As witnesses must give their evidence in the presence of the 
 accused he must be present in Court. A person shall not be in- 
 competent to give evidence by reason of interest or crime. Sec. 
 3, Can. Ev. Act. 
 
 Every person charged with an offence and, except as in the sec- 
 tion otherwise provided, the wife or husband, as tie case may be, 
 of the person so charged, shall be a competent witness for the de- 
 fence and whether the person is charged solely or jointly with any 
 other person. Sec. 4 of Can. Ev. Act. 
 
 And the wife and husband are both competent and compellable 
 witnesses for the prosecution without the consent of the person 
 charged in offences against sections 202 to 206 inclusive; 211 to 
 219 inclusive; 238, 239, 244, 245, 298 to 302 inclusive; 307 to 
 311 inclusive; 313 to 316 inclusive, of the Cbde. Ibid. 
 
 Disclosures of communications between husband and wife 
 during marriage are not compellable. Ibid.
 
 CRIMINATING ANSWERS EVIDENCE FOR PROSECUTION. 207 
 
 No witness shall be excused from answering any question on 
 the ground that the answer may tend to criiminate him. If the 
 witness objects to answer any question on the ground that his 
 answer may tend to criminate him, his answer shall not be used 
 against him in any criminal trial or proceeding against him, other 
 than perjury in the giving of such evidence. Sec. 5, Can. Ev. Act. 
 
 Not more than five expert witnesses may be called on either 
 side without the leave of the Court. Sec. 7. Ibid. 
 
 For further information as to evidence see chapter on Canada 
 Evidence Act, post. 
 
 EVIDENCE FOR PROSECUTION. 
 
 In taking evidence for the prosecution in an inquiry several 
 things have to 'be borne in mind as being required by the section 
 of the Code (682) now under consideration. 
 
 (1) The evidence must be given upon oath; any one who 
 objects to take an oath, or is incompetent to do so, may affirm. 
 And children need not be sworn unless in the opinion of the 
 justice the child understands the nature of an oath. 
 
 (2) Such evidence must be given in the presence of the 
 accused, and the accused, or, if he has a counsel or solicitor, the 
 latter, shall be entitled to cross-examine him. As has been pointed 
 out, this is a right which cannot and must not be denied to the 
 accused. See R. v. Eliasoph, 16 C. C. C. 131. 
 
 (3) The evidence of each witness shall be taken down in 
 writing in the form of a deposition which may be in Form 19, or 
 to the like effect. 
 
 There must be a proper caption or heading to the deposition; 
 a deposition without a caption will not be received. R. v. Newton, 
 1 F. & F. 641. But one caption will be enough for the deposi- 
 tions of any number of witnesses in the same case taken at the 
 hearing, provided the sheets of paper upon which the depositions 
 have been taken are fastened or annexed together so as to form a 
 connected whole. R. v. Johnson, 2 C. & K. 354; R. v. Parker, 
 L. E..1 C. 0. 225, and see R. v. Hamilton, (1898) 2 C. C. C. 390, 
 12 M. R. 354. 
 
 To avoid all difficulty the justice should follow Form 19 faith- 
 fully. 
 
 It is necessary in the caption to state the charge against the 
 accused. In R. v. Newton, supra, it did not appear upon the
 
 208 MANNER OF TAKING DOWN EVIDENCE. 
 
 caption that -the prisoner was charged with an indictable offence, 
 and it was held that this defect could not be cured by parol evi- 
 dence, and a deposition with such a defect is not admissible evi- 
 dence upon proof of deponent's death. 
 
 As much of the examination as is material must be put down, 
 what the accused says, and the statements made by the witnesses 
 should be put down in their very words and not in any law tech- 
 nicalities, or words not made use of by them. Mills v. Collett, 6 
 Bing. 85; Cohen v. Morgan, 6 D. & R. 8; R. v. Roche, Car & 
 Marsh 341. 
 
 The deposition should be taken in the first person thus, " I 
 saw, etc., at such a time and place," instead of saying, "he this 
 examinant" or "he this deponent," terms which many witnesses 
 do not understand, and perhaps which may be conceived to mean 
 some other person. 5 Burns' Justice, p. 403. 
 
 The deposition should contain the full evidence, cross-examin- 
 ation and re-examination (if any) as well as the examination in 
 chief. Any interruption by the accused should be taken down 
 and may be evidence against him. R. v. Stripp, Dears 648, 7 Cox 
 97. 
 
 If the accused, or his counsel, state that they do not wish to 
 cross-examine, this fact should be noted in the deposition. 
 
 That which is clearly irrelevant, or not admissible as evidence, 
 ought not to be admitted. 
 
 Tf f.hp jnptire has any doubt as to the admissibility he should 
 take down the question and answer and note that the same is 
 objected to. It will then be leftfor the higher tribunal to decide 
 the question of admiesibilitv. 
 
 The depositions should contain all the material statements 
 given in evidence by the witnesses. R. v. Grady, 7 C. & P. 650, 
 and R. v. Thomas, Tbid. p. 817. 
 
 See R. v. Prosiloski (No. 2), 16 C. C. C. 139, shewing that 
 oral evidence may be given of statements sworn to by the accused 
 though omitted from the depositions. 
 
 (4) The depositions must be read over to and signed by the 
 witnesses and the justice, both of which acts must be performed 
 in the presence of the justice and the accused. 
 
 As to this requirement, see R. v. Robert, 17 C. C. C. 194, and 
 R. v. Woodroff, 20 0. C. C. 17, in which last case it was held that 
 the requirement is directory only and does not affect the jurisdic- 
 tion.
 
 MANNER OF TAKING DOWN EVIDENCE. 209 
 
 This proceeding of course, is not necessary, where the evidence 
 is taken in shorthand by a sworn stenographer, under the provi- 
 sions of sec. 683 of the Code. 
 
 Evidence so taken need not be read over to or signed by the 
 witness; the transcript is required to be signed by the justice 
 accompanied by an affidavit of the stenographer that it is a true 
 report of the evidence. 
 
 (5) The witness is entitled to make any corrections before he 
 signs the deposition. This only applies to bona fide mistakes or 
 omissions, and should not be allowed so as to permit the witness 
 to change, or contradict, the statements he has already made. 
 The best plan is to add at the foot of the deposition any material 
 alteration, or addition, the witness desires to make. The omission 
 of witnesses to sign their depositions in summary conviction pro- 
 ceedings is not a matter affecting the jurisdiction of the magistrate 
 to make a conviction. Ex parte Doherty, (1894) 3 C. C. 0. 310, 
 and see R. v. Scott, 20 0. E. 646. 
 
 The signature of the justice may be either at the end of the 
 deposition of each witness, or at the end of all the depositions in 
 such form as to authenticate each separate deposition. This is 
 done by complying with the concluding paragraph of Form 19. 
 
 Although the witness is not required to sign the transcript of 
 the depositions taken in shorthand it is necessary that the justice 
 should do so. 
 
 Depositions to which the magistrate has affixed his signature, 
 although not at the foot or end thereof, are sufficiently signed 
 for the purposes of a " charge " under the Speedy Trials clauses. 
 R. v. Jodrey, (1905) 9 0. C. O. 477. 
 
 If any witness is unable to speak English his evidence can be 
 given through an interpreter. The interpreter should be first 
 sworn ; the oath can be as follows : " You swear that you will well 
 and truly interpret the evidence that shall be given by the wit- 
 ness or witnesses in this matter of The King against Brown for 
 blirgiary (or as the case may be) . so help YOU God." 
 
 It is not necessary that the interpreter shall be freshly sworn 
 upon the appearance of each witness. If he is once sworn to truly 
 interpret during the proceedings, that is sufficient. 
 
 The name of the interpreter and the fact of bis being sworn 
 should be recordedT on the face of the depositions. 
 
 C.C.P. 14
 
 210 TAKING EVIDENCE IN SHORTHAND. 
 
 DEPOSITIONS IN SHORTHAND. 
 
 683. Every justice holding a preliminary inquiry shall cause the de- 
 positions to be written in a legible hand and on one side only of each sheet 
 of paper on which they are written. Provided that the evidence upon such 
 inquiry or any part of the same may be taken in shorthand by a steno- 
 grapher who may be appointed by the justice and who before acting shall, 
 unless he is a duly sworn official court stenographer, make oath that he 
 shall truly and faithfully report the evidence. 
 
 2. Where evidence is so taken, it shall not be necessary that such evi- 
 dence be read over to or signed by the witness, but it shall be sufficient if 
 the transcript be signed by the justice and be accompanied by an affidavit 
 of the stenographer, or, if the stenographer is a duly sworn court steno- 
 grapher, by the stenographer's certificate, that it is a true report of the 
 evidence. 
 
 Unless the stenographer is a duly sworn Court stenographer 
 
 ^f^^^f^*^* *- ~-^^-^ -~^i--*~~ ---- ^"~'~~~~~** m - -~-~-~~-~~^-~^--*-^^mm*&*~^^^im 
 
 he must first be sworn before he proceeds to take the evidence. The 
 form of oath may be as follows : " You swear that you will truly 
 ~and faithfully report in shorthand and transcribe all the evidence 
 
 which may be given in tins matter of The King against 
 
 charged with so help you God." 
 
 The fact of the stenographer being appointed and sworn, and 
 his name, should be recorded on the face of the depositions and 
 if he is a duly sworn Court stenographer it would be well to make 
 that appear in the depositions. 
 
 AFFIDAVIT OF STENOGRAPHER. 
 Verifying transcript. 
 
 Province of } 
 County of 
 District of 
 
 The King 
 
 against 
 
 Smfthson for "Burglary." 
 
 I, A.B., of the of in the of 
 
 (occupation) make oath and say as follows: 
 
 1. That I am the stenographer appointed by (name of magis- 
 trate or J.P.), one of His Majesty's police magistrates or justices 
 of the peace in and for the to report the evidence 
 in this matter. 
 
 2. The evidence so reported and transcribed by me is set out 
 in the sheets of paper hereto annexed, and the same
 
 READING OVEE DEPOSITIONS. 211 
 
 is a true and faithful transcript of the said evidence as taken by 
 me in shorthand in this matter. 
 
 Sworn, &c. 
 
 This affidavit and the signature of the transcript by the Jus- 
 tice need not be before the case for the defence is entered into. 
 R. v. Rouleau, 17 C. C. O. 281. 
 
 DEPOSITIONS TO BE READ OVER STATEMENT OF ACCUSED. 
 
 684. After the examination of the witnesses produced on the part of 
 the prosecution has been completed, and after the depositions have been 
 signed as aforesaid, the justice unless he discharges the accused person, 
 shall ask him whether he wishes the depositions to be read again, and un- 
 less the accused dispenses therewith shall read or cause them to be read 
 again. 
 
 2. When the depositions have been again read, or the reading dispensed 
 with, the accused shall be addressed by the justice in these words, or to the 
 like effect : 
 
 " Having heard the evidence, do you wish to say anything in answer 
 to the charge? You are not bpuhd to say anything,, but whatever you do 
 say will be taken down in writing and may be given in evidence against 
 you at your trial. You must clearly understand that you have nothing to 
 hope for from any promise of favour and nothing to fear from any threat 
 which may have been held out to you to induce you to make any admission 
 or confession of guilt, but whatever you now say may be given in evidence 
 against you upon your trial notwithstanding such promise or threat." 
 
 3. Whatever the accused then says in answer thereto shall be taken 
 down in writing in form 20, or to the like effect, and shall be signed by 
 the justice and kept with the depositions of the witnesses and dealt with 
 as hereinafter provided. 
 
 The accused should not be put upon his oath at this stage of 
 the inquiry, and only when he volunteers to give evidence upon his 
 own behalf. 
 
 The omission of the justice to address the accused as directed 
 by sub-section 2 of section 684, after the depositions have been 
 read over, does not invalidate a commitment for trial. R. v. 
 Lantz, 15 D. L. R. 651, 22 C. C. 0. 212. 
 
 The statement is not made under oath, and, if his statement as 
 taken down and signed by the magistrate concludes "taken and 
 sworn before me," it was, before prisoners were allowed to give 
 evidence tinder oath, not receivable in evidence, and the Judge 
 would neither allow the magistrate's clerk to prove that in fact it 
 was not sworn, nor receive parol evidence of what the prisoner 
 said. R. v. Rivers, 7 C. & P. 177 : R. v. Smith, 1 Stark Rep. 242. 
 But now see R. v Skelton, post. 
 
 The prisoner's signature is not essentially necessary but only 
 for precaution and for the facility of future proof. Lam'be's Case, 
 2 Leach C. C. 625.
 
 212 STATEMENT OF ACCUSED. 
 
 It is usual and quite proper for the magistrate to get tho 
 prisoners signature to the statement even if, as is usual, he only 
 'says "I am not guilty/' or "I have nothing to say." 
 
 The signature of the accused to such statement may be after- 
 wards used against him upon the charge of forgery upon which 
 he was committed for the purpose of comparing the handwriting 
 with the alleged forgery. R. v. Golden, (1905) 10 C. C. C. 278. 
 
 An accused person by going into the witness box and giving 
 evidence in his own behalf, is not bound to write so as to provido 
 a specimen of his handwriting for comparison with a document fn 
 evidence. R. v. Grinder, (1905) 10 C. C. C. 335. 
 
 The provisions of this section are directory, and a statement 
 in writing not prefaced with the statutory words, made by a 
 prisoner to the commiting magistrate, was admitted in evidence, 
 upon evidence by the committing magistrate that he had verbally 
 cautioned the prisoner to the effect required by the statute before 
 receiving the statement in question. R. v. Kaldbeen et al., 1 B. 
 C. R., pi 1, 1. 
 
 At a preliminary hearing the accused was addressed by the 
 justice in the words set out in sec. 684. He then made a state- 
 ment, but before making it he was, at his own request, sworn. 
 The statement was taken down in writing and signed by the 
 accused. Upon this statement being offered in evidence by the 
 Crown at the trial and upon its reception being objected to, the 
 trial Judge (WETMORE, J.) admitted the statement, holding that 
 it was none the less a statement under sec. 591 (now 684) of the 
 Code, because the defendant at his own request had been sworn 
 before he made it, and if it was not a statement made under that 
 Bection the defendant was a competent witness under sec. 4 of the 
 Canada Evidence Act, and having offered his evidence under oath 
 and it having been received, it was not subject to the proviso in 
 sec. 5 of the Canada Evidence Act. It was admissible under the 
 general provisions of the Evidence Act and by virtue of sec. 593 
 (now 685) of the Code. R. v. STcelton, (1898) 4 C. C. C. 467, 
 and see R. v. Soucie, 1 P. & B. 17 N. B. R. 611. 
 
 This decision is not an authority for^the statement being takeji 
 under oath even li tne accused desires to be sworn. Efis reply in 
 answer to the question, or any statement he chooses to make, 
 should be taken down in writing and signed. He can be told that 
 if he oesrres to give evidence under oath he can do so later on 
 as provided by sec. 6.86.
 
 STATEMENT OF ACCUSED. 213 
 
 If the statement be headed according to the section it is evi- 
 dence against the accused on its mere production and without 
 proof of the mode in which it was taken, unless indeed it can be 
 shewn that the signature of the justice is forged. R. v. Sansome, 
 4 Cox 203. A statement has been admitted which was not signed 
 by either the justice or the accused. -R. v. Bond, 4 Cox 231. 
 
 If the statement is not headed in the prescribed form, or irf it 
 contains erasures or interlineations, it will probably be necessary 
 to call the justice or his clerk to explain the conditions under 
 which it was taken. Taylor on Evidence, 892. 
 
 As any statement voluntarily made by the accused is at com- 
 mon law admissible against him, the only advantage conferred by 
 the statute is to simplify the proof of the confession and to 
 render it of more weight. And where the examination is from 
 some informality inadmissible under the statute, or where it has 
 not been reduced to writing, the statement, if voluntarily made, 
 or acknowledged, by the prisoner may still be proved as a confes- 
 sion at common law. Roscoe Cr. Evidence, 51-54; R. v. Taylor, 
 13 Cox 77-8; R. v. Erdheim, [1896] 2 Q. B. 260; Phipson, 5th 
 ed., 457. 
 
 The taking of the statutory examination will not exclude proof 
 of any admission made by the accused before, or after, the ex- 
 amination, or of anything incidentally said by him during it, and 
 before being cautioned. R. v. Wilkinson, 8 C. & P. 662; R. v. 
 Harris, 1 Moody C. C. 338; R. v. Stripp, 7 Cox 97, Dears. 648. 
 
 Statements made by the accused before the justice on a former 
 investigation, but not incorporated in the examination returned, 
 are also admissible. Ibid. As has been previously stated, de- 
 positions taken on a preliminary inquiry may be read as evidence 
 at the trial of the accused in certain events, e.g., when the witness 
 is dead, or so ill as not to be able to travel, or is absent from 
 Canada, under the provisions of sec. 999 of the Code. 
 
 This makes it all the more imperative that justices should be 
 impressed with the importance and necessity of seeing that all the 
 requirements of the Code relating to preliminary inquiries are 
 carried out to the letter; the evidence must be properly taken, and 
 thus preserved it can be used at the trial if any of the contingen- 
 cies arise as provided for in sec. 999. 
 
 The caution in sec. 684 is applicable to the accused only and 
 not to any witnesses, so that a deposition of any witness, regularly
 
 214 CONFESSIONS AND ADMISSIONS BY ACCUSED. 
 
 taken, may be used against him afterwards without any caution 
 having been given, if he should be accused of crime. R. v. Ooote, 
 L. R. 4 P. C. App. 599. 
 
 By sec. 1001 of the Code, the statement made by the accused 
 person before the justice may, if necessary, upon the trial of such 
 person, be given in evidence against him without further proof 
 thereof, unless it is proved that the justice purporting to have 
 signed the same did not in fact sign the same. 
 
 CONFESSIONS AND ADMISSIONS. 
 
 685* Nothing herein contained shall prevent any prosecutor from 
 giving in evidence any admission or confession, or other statement, made 
 at any time by the person accused or charged, which by law would be ad- 
 missible as evidence against him. 
 
 In criminal cases, a confession made by the accused voluntarily 
 is evidence against him of the facts stated. But a confession 
 made after suspicion has attached to, or a charge been preferred 
 against, him, and which has been induced by any promise or threat 
 relating to the charge and made by, or with the sanction of, a 
 person in authority, is deemed not to be voluntary, and is inadmis- 
 sible. Phipson, 5th ed., p. 248. 
 
 Statements made by the accused before the crime, e.g., as to 
 his motives and intentions, or the instruments obtained to commit 
 it, are receivable against him as admissions irrespective of the 
 above limitations. R. v. Crossfield, 26 How. St. Tr. 31 4-5 ; 
 Wigmore, s. 1050. 
 
 The ground of rejection of confessions which are not voluntary 
 is the danger that the prisoner may be induced by hope, or fear, 
 to criminate himself falsely. Taylor, s. 874; 3 Euss. Cr. 479. 
 
 It is now settled that it lies upon the prosecution to establish, 
 and not upon the accused to negative, the voluntariness of the 
 confession, it being the duty of the prosecution to satisfy itself on 
 the point before putting the statement in. R. v. Thompson, 
 [1893] 2 Q. B. 12; R. v. Rose, 18 Cox 717. 
 
 A _conf ession duly made and satisfactorily proved is generally 
 sufficient to warrant a conviction without corroboration. R. v. 
 Ankles, I. E. 8 C. Lu 50, 58; \E. v. Sullivan, 16 Cox 347: Archbd. 
 Giim. PL, 24th ed., 399. 

 
 CONFESSIONS AND ADMISSIONS BY ACCUSED. 215 
 
 (a) To exclude a confession the inducements must have been 
 held out by a person in authority, that is, some one engaged in the 
 arrest, detention, examination or prosecution of the accused; or 
 by some one acting in the presence and without the dissent of such 
 a person. See Phipson, 5th ed., at p. 250, and cases there cited. 
 
 (6) A promise or threat in order to exclude a confession must 
 relate to the charge, that is, must reasonably imply that the 
 prisoner's position with reference to it will be rendered better or 
 worse according as he does or does not confess. It need not, how- 
 ever, be express, but may be implied from the conduct of the per- 
 son in authority, the declarations of the prisoner, or the circum- 
 stances of the case. R. v. Gillis, 11 Cox 69. Nor need it be made 
 directly to the prisoner; it is sufficient if it may reasonably be 
 presumed to have come to his knowledge, providing, of course, it 
 appears to have induced the confession. R. v. Thompson, supra. 
 
 On the other hand, fear alone, without threats, will not ex- 
 clude a confession. NOT will a promise or threat to one prisoner 
 exclude a confession made by another who was present and heard 
 the inducement. R. v. Jacobs, 4 Cox 54; R. v. Bate, 11 Cox 686, 
 though perhaps the principle of R. v. Thompson, supra, would in- 
 clude such a case: Phipson, 5th ed., p. 251. Nor will an induce- 
 ment to confess as to one crime invalidate a confession as to a 
 different one. R. v. Warner, Russ. Cr. 7th ed., 2174n, unless both 
 are parts of the same transaction. R. v. Hearn, 1 C. & M. 109. 
 
 (c) If the impression produced by the promise or threat is 
 clearly shewn to have been removed, e.g., by the lapse of time, or 
 by any intervening caution given by some person of superior (but 
 not of equal or inferior authority) to the person holding out the 
 inducement, a confession subsequently made will be strictly re- 
 ceivable. Phipson, 5th ed., 252. 
 
 (d) The whole confession must be taken although containing 
 matter favourable to the prisoner, though the jury may attach 
 different degrees of credit to the different parts. And if the con- 
 fession implicates others their names cannot be omitted, though 
 the Judge should warn the jury that it is only evidence against 
 the maker. Phipson, p. 253. 
 
 (e) It is in general immaterial to whom a voluntary confes- 
 sion has been made statements made by the accused to the prose- 
 cutor, or which he has been overheard muttering to himself, if 
 otherwise than in his sleep, or made in confidence to a fellow 
 prisoner, or to his wife, or solicitor, are admissible against him. 
 Phipson, 253.
 
 216 CONFESSIONS. 
 
 PREVAILING DOCTRINE. 
 
 " 
 
 But the doctrine in England at present and the prevailing 
 
 doctrine in the United States is, that evidence of any confession 
 js" receivable unless there has been some inducement held out bv 
 spme person who had, or was supposed to have, authority to assure 
 the ace-used the promised good. 6 Am. & Eng. Ency. 548. 
 
 The well known rule as to the admission, or rejection, of a 
 confession made by a prisoner is to the effect that no confession 
 by the prisoner is admissible which is made in consequence of any 
 threat, or inducement, of a temporal nature having reference to 
 the charge against the prisoner made or held out by a person in 
 authority. DUBUC, J., at p. 518, and see BAIN, J., at p. 524, in 
 R. v. Todd, (1901) 4 C. C. O. 514. 
 
 The general rule is that a free and voluntary confession made 
 by a person accused of an offence is receivable in evidence against 
 him as the highest and most satisfactory proof of guilt, because 
 it is fairly presumed that no man would make such a confession 
 against himself if the facts confessed were not true. R. v. Lambc. 
 2 Leach C. 0. 625. 
 
 " Whatever justification there might be for a person in author- 
 ity endeavouring to worm a confession out of a suspected person, 
 there was certainly no justification of such a resort to falsehood. 
 The statement " You might as well own up as to have it brought 
 out in a Court of Justice," made to the accused, was equivalent to 
 "if you do not tell us it will be brought out in a Court of Jus- 
 tice." Such a threat made by a person in authority renders the 
 confession inadmissible." Per SCOTT, J., in R. v. Macdonald, 
 (1896) 2 C. C. C. 221. 
 
 The burden is on the Clown to prove that a confession of guilt 
 made to a person in authority was free and voluntary. R. v. Pah- 
 Cak-Pah-Ne-Capi, 4 C. C. C. 93; and see R. v. Tutty, (1905) 9 
 C. C. C. 544. 
 
 It must be proved affirmatively to the satisfaction of the trial 
 Judge that it was made freely and voluntarily and not in response 
 to any threat, or suggestion of advantage, to be inferred either 
 directly or indirectly, used by a person in a position of authority 
 in connection with the prosecution. R. v. Ryan, (1905) 9 C. C. 
 C. 347, 9 0. L. R. 137. 
 
 Held, that a rector of a parish was a person in authority, and 
 that a statement to him by a boy member of his choir concerning
 
 CONFESSIONS MADE AFTER ARREST. 217 
 
 an assault on another boy was not voluntary, and so not admissible 
 in evidence. R. v. Royds, 10 B. C. B, 407. 
 
 CONFESSIONS MADE AFTER ARREST. 
 
 It was held by DUFF, J., in R. v. Kay, 9 C. C. C. 406, 11 B. 
 C. E. 157, that after arrest the accused ought to be warned and 
 made to understand that he was being questioned \vith the ob- 
 ject of extracting admissions to be used against him. In this 
 case the statements were made after the arrest of the accused in 
 answer to questions put by the chief constable. " In such a case 
 it is not in my opinion sufficient for the prosecution simply to 
 shew that no inducement was put forward by way of threat or 
 promise express, or implied. The arrest and charge are in them- 
 selves a challenge to the accused to speak, an inducement within 
 the rule. The accused ought, therefore, to have been warned of 
 the consequences of speech, and made to understand that he was 
 being questioned with the object of extracting admissions to be 
 used against him." DUFF, J., p. 404, ibid. This case was fol- 
 lowed by BITCHIE, J., in R. v. Cook, 22 0. C. C. 241. 
 
 "la my opinion when a prisoner is once taken into custody i 
 policeman should ask no questions at all without administering 
 the jusual caution/' HAWKINS, J., in R. v. Histed, 19 Cox 16, 
 and see remarks of HUNTER, C.J., at the trial in R. v. Bruce, 12 
 C. C. C. 275. See also R. v. Rossi, 17 C. C. C. 182. 
 
 But in Rogers v. Hawken, 19 Cox 122, RUSSELL, C.J., and 
 MATHEW, J., disapproved of the following judgment by CAVE, 
 J.: 
 
 "It is quite right for a police constable, or any other police 
 officer, when he takes a person into custody to charge him, and 
 let him know what it is he is taken up for, but the prisoner 
 should be previously cautioned because the very fact of charging 
 induces a prisoner to make a statement, and he should have been 
 informed that such a statement may be used against him. The 
 law does not allow a Judge or the jury to put the questions in 
 open Court to prisoners, and it would be monstrous if the law per- 
 mitted a police officer to go without anyone being present to see 
 how the matter was conducted, and put a prisoner through an 
 examination and then produce the effects of that examination 
 against him. Under these circumstances a policeman should keep 
 his mouth shut and his ears open. He is not bound to stop a 
 prisoner in making a statement; his duty is to listen and report,
 
 218 
 
 CONFESSIONS IN ANSWER TO QUESTIONS. 
 
 but it is quite another matter that he should put questions to 
 prisoners." CAVE, J., in R. v. Male & Cooper, (1893) 17 Cox 
 689. And in R. v. BracTcenbury , 17 Cox 628, MR. JUSTICE DAY 
 took an opposite view and received such evidence. See the cases 
 collected in Phipson, at p. 252. 
 
 It, therefore, seems to be the better opinion, based on deci- 
 / sions of Courts of Appeal as opposed to those of single Judges pre- 
 siding at trials, that the mere fact that the confessions were made 
 after, arrest in answer to questions by the police is not sufficient 
 to exclude them, if they are shewn to be otherwise voluntary and 
 not procured by any threat or inducement See the following 
 cases. 
 
 The general principle governing the receivability of statements 
 made by the accused person to persons in authority is stated by 
 MR. JUSTICE CAVE in R. v. Thompson, 17 Cox 641, at p. 645, 
 same case, [1893] 2 Q. B. 12, at p. 17, as follows : 
 
 " If these principles and the reasons for them are, as it seems 
 impossible to doubt, well founded, they afford to magistrates a 
 simple test by which the admissibility of a confession may be 
 decided. They have to ask: Is it proved affirmatively that the 
 confession was free and voluntary that is, was it preceded by any 
 inducement held out by a person in authority to make a state- 
 ment? If so, and the inducement has not clearly been removed 
 before the statement was made, evidence of the statement is in- 
 admissible." 
 
 On this question the law, at all events in Ontario, seems to 
 be well settled, and one of the best expressions of it is as follows: 
 
 " The great weight of authority is in support of the conclusion 
 that answers given in response to the officer in charge are to be 
 received in evidence so long as they are not evoked, or extorted, 
 by inducements, or threats. The general principle^ is that ad- 
 jnissiona made to the officer in charge even in response to ques- 
 tions may be received if the presiding Judge is satisfied that they 
 were not unduly, or improperly, obtained, which depends on the 
 circumstances of each case, BOYD. (J.. at T>. 98. delivering the 
 judgment of the Court of Appeal for Crown cases reserved in R. 
 v. Elliott, (1899) 3 C. C. G. 95. 
 
 " We think, although we reprehend the practice of questioning 
 prisoners^ that we r-anmvfr come to the conclusion thai evidence 
 obtained by such questioning is inadmissible. The great weiprnt 
 of authority In .England and Ireland, and all the cases in which
 
 CONFESSIONS IN ANSWER TO QUESTIONS. 219 
 
 n 
 
 the point has been considered by a Court for Crown cases re- 
 served, go to shew that ihe evidence is admissible. We must leave 
 it to the legislature to determine -whether the practice of cross- 
 examining prisoners is legally to obtain hereafter. We hold the 
 evidence admissible and affirm the conviction." ARMOUR. dJ.. 
 for the Queen's Bench Division, in E. v. Day, (18901 20 0. R. 
 
 209. 
 
 
 
 This last decision as stated by BOYD. C.. in R. v. Elliott, set- 
 tled the law in Ontario upon this subject, and if. was approved in 
 the Appellate Court of Quebec in R. v. View, Y Que. Q. B. 362 
 
 Statements made by a prisoner in a cell to a person whom he 
 reasonably supposed to be an agent sent by his counsel to inter- 
 view him regarding the defence, are as much privileged as would 
 be statements made to the counsel himself. When persons con- 
 cealed themselves outside the cell in a position to overhear such 
 statements in pursuance of a scheme previously planned, the 
 interview should be treated as one with several persons who had 
 fraudulently adopted the character of the counsel's representa- 
 tives and the cloak of privilege should be applied to what was 
 heard by the listeners without, as well as the one within the cell. 
 R. v. Choney, (1908) 17 M. R. 469, 13 O. C. C. 289. 
 
 " Generally speaking, it may be said that it is no objection to j 
 the admissibility of a prisoner's confession that it was obtained 
 by means of a trick, or artifice, practised upon him by the offi- 
 cer or other person to whom it was made." OSLER, J.A., at p. 33 
 in R. v. White, (1908) 15 C. C. C. 30. 
 
 In R. v. Todd, 4 C. C. C. 514, 13 M. R. 364, statements made 
 by the prisoner, relating to charges upon which he was afterwards 
 arrested, to two detectives, induced by false representations, were 
 held to be admissible, as there was then no charge pending against 
 the prisoner, the detectives were not peace officers and the prisoner 
 did not know that they were detectives. 
 
 A confession is admissible, although it is elicited in answer 
 to a question which assumes the prisoner's guilt, or is obtained 
 by artifice or deception. Joy cm Confessions, p. 4%; Arch. Cr. P. 
 & Ev., 24th ed., 1910, p. 395; Roscoe, 13th ed., p. 44. 
 
 But not if it appears that such an admission was suggested 
 to the prisoner by a peace officer with inducements and was 
 shortly after made to a Orown officer as a result of such induce- 
 ments. R. v. Hope Young, (1905) 10 O. 0. C. 466. Where a 
 constable gave the usual caution to a prisoner, but afterwards said
 
 220 RECEPTION OF CONFESSIONS IN EVIDENCE. 
 
 to him, " The truth will go better than, a lie if anyone prompted 
 you to do it, you had better tell about it," whereupon the pri- 
 soner said that he did the act complained of. Held, the admis- 
 sion was not receivable in evidence and a conviction grounded 
 thereon was improper. R. v. Fennell, 7 Q. B. D. 147, followed: 
 R. v. Romp, 17 0. R. 567. Statements to constable and coroners, 
 see R. v. Finkle, 15 C. P. 453. Statements to detectives, see R. 
 V. Attwood, 20 0. R. 574; R. v. Day, 20 0. R. 209. 
 
 An entirely voluntary confession by the accused made to one 
 in authority without interrogation by him is admissible __ although 
 no caution or formal warning was given to the accused: R. v. 
 Bruce, 12 C. C. C. 275; R. v. Hoo Sans, 19 C. C. O. 259. 
 
 See also the following cases on this subject: R. v. Trepanier, 
 19 0. C. 0. 290; R. v. Cummings, 19 C. C. C. 358, and R. v. 
 James, 19 C. C. C. 391. 
 
 An acknowledgment of a subordinate fact, not directly involv- 
 ipg guilt and not essential to the crime charged, is not a " con- 
 fession" within the above rules excluding confessions to persons 
 in authority unless shewn to have been made freely and volun- 
 tarily: R v. Hurd, 21 C. C. C. 98, a unanimous decision of five 
 Judges in the Supreme Court of Alberta. 
 
 By sec. 978 of the Code, any accused person on his trial for 
 any indictable offence, or his counsel, or solicitor, may admit any 
 fact alleged against the accused so as to dispense with proof 
 thereof. This does not apply to preliminary inquiries, but to the 
 trial of the person summarily, or by indictment. . 
 
 Evidence of statements made by a person since deceased, im- 
 mediately after an assault upon him, under apprehension of 
 further danger and requesting assistance and protection, is ad- 
 missible as part of the res gestae, even though the person accused 
 of the offence was absent at the time when such statements were 
 made. Gilbert v. The King, (1907) 38 S. C. R, 284; R. v. Bed- 
 dingfield, 14 Cox 341 ; R. v. Foster, 6 C. & P. 325, and Aveson v. 
 Kinnaird, 6 East 188, followed. 
 
 Statements not coincident in point of time with the occur- 
 rence of the assault, but uttered in the presence and hearing of 
 the accused and under such circumstances that he might reason- 
 ably have been expected to have made some explanatory reply 
 to remarks in reference to them, are admissible in evidence. 
 Gilbert v. R., supra.
 
 WITNESSES FOR THE DEFENCE. 221 
 
 WITNESSES FOR THE DEFENCE. 
 
 686. After the proceedings required by section six hundred and eighty- 
 four are completed the accused shall be asked if he wishes to call any wit- 
 nesses. 
 
 2. Every witness called by the accused who testifies to any fact rele- 
 vant to the case shall be heard, and his deposition shall be taken in the 
 same manner as the depositions of the witnesses for the prosecution. 
 
 Unless the accused can call witnesses whose evidence will es- 
 tablish his innocence of the charge, or explain away the circum- 
 stances adduced in evidence by the prosecution in such a way 
 as to clear him, it is not generally wise from the prisoner's point 
 of view 'to call witnesses at this stage. 
 
 Experienced counsel very seldom avail themselves of this op- 
 portunity of going into the evidence for the defence, being con- 
 tent with the cross-examination of the witnesses for the prosecu- 
 tion, and reserving their full defence till the trial. 
 
 LORD DENMAN, O.J., in R. v. Smith, 2 C. & K. 207, said: 
 " If a person in whose possession stolen property is found give 
 a reasonable account of how he came by it, and makes reference 
 to some known person as the person from whom he received it, 
 the magistrate should send for that person and examine him, 
 as it may be that his statement may entirely exonerate the accused 
 person and put an end to the charge." And see R. v. Crowhurst, 
 1 C. & K. 370, and R. v. Hughes, 1 Cox 176 ; R. v. Dibley, 2 C. & 
 K. 818; R. v. Harmer, 2 Cox 487; R. v. Wilson, Dears. & B. 157. 
 As to the general right of a person charged before a magistrate 
 with an indictable offence to call witnesses for the defence, see 
 In re Phipps, 8 A. E. 77, and R. v. Meyer, 11 P. B, 477. 
 
 ADJUDICATION AND SUBSEQUENT STEPS AND BAIL. 
 
 687. When all the witnesses on the part of the prosecution and the 
 accused have been heard the justice shall, if upon the whole of the evidence 
 he is of opinion that no sufficient case is made out to put the accused upon 
 his trial, discharge him. 
 
 2. In such case any recognizances taken in respect of the charge shall 
 become void, unless some person is bound over to prosecute under the pro- 
 visions of the next following section. 
 
 The justice is not called upon to decide the guilt or innocence 
 of the accused, but, after considering the whole evidence, he has 
 to form an opinion as to whether, or not, a sufficient case has been 
 made out to put the accused upon his trial. It is not for the 
 jnafiftp +r> V>a1gn/ip r> r wfijgh the evidence as if he was trying the 
 accused for the offence charged.
 
 222 FINAL ADJUDICATION BY JUSTICE. 
 
 If the witnesses for the accused have explained away the facts 
 given in evidence by the witnesses for the prosecution which go 
 to the root of the matter and they establish the prisoner's inno- 
 cence, or the utter improbability of the story put up by the pro- 
 secution, this will render further proceedings unnecessary and the 
 accused should be discharged. 
 
 If, on the other hand, there is a flat contradiction of testimony 
 between the witnesses for the prosecution and those for the de- 
 fence in material features of the case, then it is well to commit 
 the accused in order that a jury may have an opportunity of hear- 
 ing the evidence and deciding the truth of the conflicting state- 
 ments. 
 
 If the justice feels that the witnesses for the prosecution are 
 unworthy of belief, or the evidence offered by them establishes 
 a very slender case and there is a likelihood that, if the case is 
 sent for trial, the jury will acquit him, he should discharge the 
 accused 
 
 It is to be borne in mind that a dismissal by a justice on a 
 preliminary inquiry is not an acquittal of the accused, and that 
 it ie open to the Crown to lay another charge against him for 
 the same offence. R. v. Waters, 12 Cox 390; R. v. Morton, 19 C. 
 P., at p. 26; Re Hannay, (1905) 11 C. C. C. 23; R. v. Guerin, 
 16 Cox 596-601, and R. v. Burke, 19 0. C. C. 141. 
 
 As to the magistrate's discretion to re-open the inquiry after 
 evidence heard and nothing has been shewn against the accused, 
 see Belanger & Mulvena, Q. L., E. 22 S. C. 37. Tg -justify fho 
 committal of an accused person for trial or for extradition, it is 
 only necessary that the evidence should be such as^ amounts to pro- 
 bable cause to believe him guilty. It is jnot necessary that it be 
 sufficiently conclusive to authorize his conviction. WURTELE, J., 
 at p. 273, in Ex parte Feinberg, (1901) 4 C. C. C. 270. 
 
 To commit only requires that the circumstances proved are 
 sufficiently strong in themselves to warrant a cautious man In 
 the belief that the person accused is probably guiltv of the offence 
 with which he is charged^ Ibid. 
 
 ^ 
 
 BINDING OVER PROSECUTOR. 
 
 688. If the justice discharges the accused, and the person preferring 
 the charge desires to prefer an indictment respecting the said charge, he 
 may require the justice to bind him over to prefer and prosecute such an 
 indictment, and thereupon the justice shall take his recognizance to prefer 
 and prosecute an indictment against the accused before the Court by which
 
 BINDING OVER PROSECUTOR COMMITMENT FOR TRIAL. 223 
 
 such accused would be tried if such justice had committed him, and the 
 justice shall deal with the recognizance, information and depositions in the 
 same way as if he had committed the accused for trial. 
 
 2. Such recognizance may be in form 21, or to the like effect. 
 
 >. 
 
 689. If the prosecutor so bound over at his own request does not 
 prefer and prosecute such an indictment, or if the grand jury does not find 
 a true bill, or if the accused is not convicted upon the indictment so pre- 
 ferred, the prosecutor shall, if the Court so direct, pay to the accused per- 
 son his costs, including the costs of his appearance on the preliminary in- 
 quiry. 
 
 2. The Court before which the indictment is to be tried or a Judge 
 thereof may in its or his discretion order that the prosecutor shall not be 
 permitted to prefer any such indictment until he has given security for 
 such costs to the satisfaction of such Court or Judge. 
 
 If the information, or evidence, do not disclose a criminal 
 offence, the justice is not called upon to bind the prosecutor over 
 under sec. 688. Ex parte Wason, L. R, 4 Q. B. 573; JR. v. 
 London, Lord Mayor of, 16 Cbx 81. 
 
 As to any one bound over under sec. 688 preferring indictment, 
 see sec. 871 of the Code. And see R. v. Hoo Yoke, (1905) 10 C. 
 C. C. 211. 
 
 As to costs incurred, as provided by sec. 689, see R. v. St. 
 Louis, (1897) 1 C. C. C. 141; and see R. v. Hart, 45 U. C. R. 
 1; May v. Reid, 16 A. R. 150; and R. v. Fitzgerald, 1 C. C. 0. 
 420, 29 0. R. 203. 
 
 COMMITMENT FOR TRIAL. 
 
 690. If a justice holding a preliminary inquiry thinks that the evi- 
 dence is sufficient to put the accused on his trial, he shall commit him for 
 trial by a warrant of commitment, which may be in form 22, or to the like 
 effect. 
 
 A justice's warrant of commitment for trial must describe an 
 offence for which a commitment for trial can be legally made. 
 Ex parte Welsh, (1898) 2 0. C. C. 35. 
 
 Justices may substitute a good warrant of commitment for a 
 bad one. That is, they may return an amended, or fresh, warrant 
 with the writ of certiorari, and, if it is sufficient, the Court will 
 not inquire into the validity of a previous warrant under which 
 tne prisoner was committed. Re Plurikett. (1895) 1 C. C. C. 
 365, 3 B. C. R. 484. ~ 
 
 A warrant of commitment is not invalid merely on the ground 
 that it does not disclose an indictable offence if the depositions 
 disclose such an offence. R. v. Beaudoin, 22 C. C. C. 319, follow- 
 ing R. v. Brown, [1895] 1 Q. B. 119, and R. v. Phillips, 11 C. 
 C. C. 89.
 
 224: COMMITTING ACCUSED FOR TRIAL. 
 
 Prisoner had been committed under a warrant which was de- 
 fective. Subsequent to the service on the gaoler of a writ of 
 habeas corpus, he received another warrant which was regular. 
 Held that the second warrant was valid and sufficient to detain 
 the prisoner in custody. R. v. House, 2 M. R, 58. 
 
 One justice may sign a warrant of commitment. A warrant 
 may be partly written and partly printed. The warrant was ad- 
 dressed to the keeper of the common gaol at the City of Winni- 
 peg, instead of to the keeper of the common gaol of the Eastern 
 Judicial District. Held, sufficient, as there can be no uncertainty 
 as to the person to whom the warrant is addressed, there being 
 only one common gaol in Winnipeg. But the prisoner was dis- 
 charged as the warrant did not disclose an offence known to the 
 law. R. v. Holden, (1886) 3 M. R. 579. 
 
 Held, that the warrant of commitment was insufficient, as it 
 contained no mandatory words directing the keeper of the gaol 
 to receive the prisoner into his custody, and there imprison and 
 keep him for a specified time, &c. R. v. Barnes, (1887) 4 M. R. 
 448. 
 
 The warrant must shew where the prisoner is to be confined. 
 Re King, 37 C. L. J. 317. 
 
 A warrant of commitment on the charge that A " did steal a 
 certain waggon" was held sufficient without alleging absence of 
 any colour of right, or laying property in any person. R. v. Leet, 
 20 C. L. T. Occ. N. 46. 
 
 The decision of the magistrate in committing for trial or ad- 
 mitting to bail cannot be reviewed on certiorari. R. v. JJ. Ros- 
 common, [1894] 2 Q. B. Ir. 158. After committing, he is functus 
 officio. See R. v. LusTiington, [1894] 1 Q. B. 420. 
 
 " The warrant is bad, as it does not shew the jurisdiction of 
 the magistrate. He had jurisdiction only as being stipendiary 
 magistrate for the district and not as a justice of the peace, but 
 he is described as a justice of the peace. It cannot be inferred 
 from the letters " P. M." appended to his signature, that he was 
 stipendiary for that district; he might be stipendiary for some 
 other district. Prisoner discharged." HUNTER, O.J., in R. v. 
 Hong Lee, (1909) 15 C. C. C. 39. See also Lafleur v. Vallee, 19 
 C. C. 0. 362. 
 
 Commitments to the custody of gaolers, etc., must be in writ- 
 ing (or part writing and part printing), under the hand and seal 
 of the justice making the commitment, directed to the gaoler, or
 
 COPY OF DEPOSITIONS RECOGNIZANCE. 225 
 
 keeper, of prison, mentioning the time and place of making it. 2 
 Hawk. P. C., ch. 10, 513. 
 
 The name, office and authority of the justice ought to be 
 shewn on the face of the warrant. 2 Hale 122. See further, 
 " Chapter on Summary Convictions," Chap. VIII. The duties of 
 a constable receiving a warrant of commitment are prescribed by 
 sec. 704 of the Code. 
 
 COPY OF DEPOSITIONS. 
 
 691. Every one who has been committed for trial, whether he is bailed 
 out or not, shall be entitled at any time before the 'trial to have copies of 
 the depositions, and of his own statement, if any, from the officer who has 
 custody thereof, on payment of a reasonable sum not exceeding five cents 
 for each folio of one hundred words. 
 
 In R. v. Srmili, 1 Stra. 126, a rule was granted to compel, 
 a justice of the peace to cause an examination taken before him 
 to be produced at the trial and to give the party a copy in the 
 meantime. 
 
 In an action for a malicious prosecution, a rule was obtained 
 for the committing magistrate ix> shew cause why he should not 
 permit the plaintiff to inspect and take a copy of the information 
 at his own expense and cause the original to be produced at the 
 trial. Welch v. Richards, Barnes 468. 
 
 A Court stenographer is a public official against whom a man- 
 damus may issue for non-performance of his official duty to fur- 
 nish an applicant with a copy of evidence taken at a criminal 
 trial. R. v. Campbell, (1905) 10 C. C. C. 326. 
 
 BECOGNIZANCE TO PROSECUTE OR GIVE EVIDENCE. 
 
 692. When any one is committed for trial the justice holding the pre- 
 liminary inquiry may bind over to prosecute some person willing to be so 
 bound, and bind over every witness whose deposition has been taken, and 
 whose evidence in his opinion is material, to give evidence at the Court 
 before which the accused is to be indicted. 
 
 2. Every recognizance so entered into shall specify the name and sur- 
 name of the person entering into it, his occupation or profession, if any, 
 the place of his residence and the name and number, if any, of any street 
 in which it may be. and whether he is owner or tenant thereof or a lodger 
 therein. 
 
 3. Such recognizance may be either at the foot of the deposition or 
 separate therefrom, and may be in form 23, 24 or 25, or to the like effect, 
 and shall be acknowledged by the person entering into the same, and be 
 subscribed by the justice or one of the justices before whom it is ac- 
 knowledged. 
 
 C.C.P. 15
 
 226 RECOGNIZANCE TO PROSECUTE OR GIVE EVIDENCE. 
 
 4. Every such recognizance shall bind the person entering into it to 
 prosecute or give evidence (both or either as the case may be), before the 
 Court by which the accused shall be tried. 
 
 5. If it is made to appear to the justice that any person to be so 
 bound over as a witness is without means or without sufficient means, or 
 if other reasons therefor satisfactory to him are shewn, the justice may 
 require that a surety or sureties be procured and produced and join in the 
 recognizance, or that a sum of money be deposited with 'the justice, suffi- 
 cient in his opinion to insure the appearance of such person at the trial 
 and the giving of his evidence. 
 
 Sub-section 5 was added by the amendments to the Code in 
 1909. Infants and married women who cannot legally bind them- 
 selves must procure others to be bound for them. Infancy, how- 
 ever, is no ground for discharging a forfeited recognizance to 
 appear and prosecute for a felony. Ex parte Williams, 13 Price 
 623. 
 
 Recognizances need not be signed by the persons entering into 
 them, but they are required to be signed by the justice taking 
 them. 
 
 It is suggested that a person depositing a sum of money as 
 provided by sub-sec. 5 should at the same time enter into a per- 
 sonal recognizance and the deposit be accepted as ancillary to the 
 bond. 
 
 See sec. 840 of the Code as to recognizances taken under this 
 section being obligatory when the person committed elects to take 
 a speedy trial under Part XVIII. of the Code. 
 
 Recognizances taken under this section upon a Sunday are 
 regular. HANNINGTON, J., in Ex parte Garland, (1901) 8 C. C. 
 C. 3S5. 
 
 If the recognizance is for the next Court of competent juris- 
 diction, it only requires appearance at that Court, not at a later 
 one. Re Cohen's Bail, 16 C. L. T. Occ. N. 217. As to estreat 
 of recognizances, see post. 
 
 WARRANT FOR ABSCONDING WITNESS. 
 
 693. Whenever any person is bound by recognizance to give evidence 
 before a justice, or any criminal Court, in respect of any offence under this 
 Act, any justice, if he sees fit, upon information being made in writing 
 and on oath, that such person is about to abscond, or has absconded, may 
 issue his warrant for the arrest of such person. 
 
 2. If such person is arrested, any justice, upon being satisfied that the 
 ends of justice would otherwise be defeated, may commit sueh person to 
 prison until the time at which he is bound by such recognizance to give 
 evidence, unless in the meantime he produces sufficient sureties. 
 
 3. Any person so arrested shall be entitled on demand to receive a 
 copy of the information upon which the warrant for his arrest was issued.
 
 WARRANT FOR ABSCONDING WITNESS BAIL. 227 
 
 694. Any witness who refuses to enter into or acknowledge any such 
 recognizance as aforesaid may be committed by the justice holding the in- 
 quiry by a warrant in form 26, or to the like effect, to the prison for the 
 place where the trial is to be had, there to be kept until after the trial, or 
 until the witness enters into such recognizance as aforesaid before a jus- 
 tice having jurisdiction in the place where the prison is situated. 
 
 2. If the accused is afterwards discharged any justice having such 
 jurisdiction may order any such witness to be discharged by an order which 
 may be in form 27, or to the like effect. 
 
 695. The information, if any, the depositions of the witnesses, the 
 exhibits thereto, the statement of the accused, and all recognizances en- 
 tered into, and also any depositions taken before a coroner, if any such 
 have been sent to the justice, shall *as soon as may be after the committal 
 of the accused, be transmitted to the clerk or other proper officer of the 
 Court by which the accused is to be tried. 
 
 2. When any order changing the place of trial is made the person 
 obtaining it shall serve it, or an office copy of it, upon the person then in 
 possession of the said documents, who shall thereupon transmit them and 
 the indictment, if found, to the officer of the Court before which the trial 
 is to take place. 
 
 RULE AS TO BAIL. 
 
 696. When any person appears before any justice charged with an 
 indictable offence punishable by imprisonment for more than five years, 
 other than treason or an offence punishable with death or an offence 
 under any of the sections seventy-six to eighty-six inclusive, and the evi- 
 dence adduced is, in the opinion of such justice, sufficient to put the ac- 
 cused on his trial, but does not furnish such a strong presumption of guilt 
 as to warrant his committal for trial, the justice, jointly with some other 
 justice, may admit the accused to bail upon his procuring and producing 
 such surety or sureties as, in the opinion of the two justices, will be suffi- 
 cient to ensure his appearance at the time and place when and where he 
 ought to be tried for the offence ; and thereupon the two justices shall take 
 the recognizances of the accused and his sureties, conditioned for his ap- 
 pearance at the time and place of trial, and that he will then surrender and 
 take his trial and not depart the Court without leave. 
 
 2. In any case in which the offence committed or suspected to have 
 been committed is an offence punishable by imprisonment for a term less 
 than five years, any one justice before whom the accused appears may ad- 
 mit to bail in manner aforesaid, and such justice or justices may, in his 
 or their discretion, require such bail to justify upon oath before him or 
 them as to their sufficiency. 
 
 3. In default of such person procuring sufficient bail, such justice or 
 justices may commit him to prison, there to be kept until delivered ac- 
 cording to law. 
 
 4. The recognizance mentioned in this section shall be in Form 28. 
 
 In R. v. Gibson, (1896) 3 C. 0. C. 451. MEAGHER. J.. at r>. 
 461, says: " There docs not appear to be any provision in the Code 
 whicn requires the justice, in cases where he discharges the ac- 
 cused, or where, acting under the provisions of sec. 601 (now 
 696), he bails him and, does not commit him, to transmit the 
 depositions to any (Jourt or officer." 
 
 It is true that there is no specific provision as to transmitting 
 the depositions when the accused is released under sec. 696, yet
 
 228 ADMITTING TO BAIL IN LIEU OF COMMITMENT. 
 
 the practice is to send all the depositions, etc., along with the 
 recognizance, to the proper officer, the same as if the accused had 
 been committed under sec. 695. 
 
 The recognizance entered into by the accused when admitted 
 to bail under this section (Form 28) is identical with the recog- 
 nizance which he and his sureties would enter into if he had been 
 committed to gaol and then admitted to bail on a Judge's order. 
 
 Besides, it is necessary that the information, depositions, etc., 
 should be sent by the justice to the proper officer, as under sec. 
 
 695, in order that they may be perused by the Crown officers for 
 consideration as to whether or not an indictment will be preferred 
 against the accused. This matter is dealt with at length in order 
 that justices may not be misled by the fact that there are no 
 specific provisions in the Code for the transmission of the papers 
 when they choose to exercise the authority given them by this 
 section of the Code. There is no doubt that the papers should 
 be dealt with exactly as under sec. 695. In considering this sec. 
 
 696, several things are to be observed. 
 
 (1) The proceedings are not applicable when the accused is 
 charged with- (a) treason, (&) with an offence punishable with 
 death (this includes rape: Re Hopfe's Bail, 22 C. C. 116), or (c) 
 offences under any of the sections of the Code 76 to 86 inclusive. 
 
 These offences are: Sec. 76, Accessory to treason; 77, Levying 
 war by subject of a foreign state that is -at peace with His Ma- 
 jesty; 78, Treasonable offences; 79, Conspiracy to intimidate 
 a legislature; 80, Assault upon the King; 81, Inciting to mu- 
 tiny; 82, Persuading enlisted soldier to desert, or concealing a 
 deserter; 83, Eesisting execution of a search warrant for a de- 
 serter; 84, Persuading men to desert from militia, R. N. W. M. 
 P., etc., 85, Entering fortress, camp, ship, etc., for wrongfully 
 obtaining information; 86, Communicating information acquired 
 in office. 
 
 (2) Where the offence is punishable by imprisonment for more 
 than five years, two justices must join in admitting the accused 
 to bail and taking the recognizance. A police, or stipendiary 
 magistrate, can act alone, as they exercise the powers of two 
 justices. 
 
 (3) Where the offence is punishable by imprisonment for a 
 term less than five years, one justice before whom the accused 
 appears may admit to bail.
 
 BAIL AFTER COMMITTAL. 229 
 
 If the maximum term of imprisonment should be exactly five 
 years, it is submitted that two justices would be required for the 
 allowance of bail. 
 
 (4) And the justice or justices may require the bail to justify 
 upon oath before him or them as to their sufficiency. 
 
 (5) In default of the accused procuring sufficient bail, the 
 justice may commit him to prison to await his trial. 
 
 (6) The recognizance shall be in Form 28. 
 
 Any one admitted to bail under sec. 696 of the Cbde is not de- 
 prived of his right to a speedy trial under sec. 825, Part XVIII., 
 of the Code. See E. v. Lawrence, (1.896) 1 C. C. C. 295, and 
 R. v. Burke, 24 0. E. 64. 
 
 697. Where the offence is one triable by the Court of General or 
 Quarter Sessions of the Peace and the justice is of opinion that it may bet- 
 ter or more conveniently be so tried, the condition of the recognizance may 
 be for the appearance of the accused at the next sittings of that Court 
 notwithstanding that a sitting of a superior Court of criminal jurisdiction 
 capable of trying the offence intervenes. 
 
 This section applies in Ontario and Quebec since they are 
 the only provinces in Canada that have Courts of General, or 
 Quarter Sessions. 
 
 BAIL AFTEE COMMITTAL. 
 
 698. In case of any offence other than treason or an offence punish- 
 able with death, or an offence under any of the sections seventy-six to 
 eighty-six inclusive, where the accused has been finally committed as herein 
 provided, any Judge of any superior or County Court, having jurisdiction 
 in the district or county within the limits of which the accused is con- 
 fined, may, in his discretion, on application made to him for that purpose, 
 order the accused to be admitted to bail on entering into a recognizance 
 with sufficient sureties before two justices, in such amount as the Judge dir- 
 ects, and thereupon the justices shall issue a warrant of deliverance as 
 hereinafter provided, and shall attach thereto the order of the Judge direct- 
 ing the admitting the accused to bail. 
 
 2. Such warrant of deliverance shall be in Form 29. 
 
 699. No Judge of a County Court or justices shall admit any person 
 to bail accused of treason or an offence punishable with death, or an of- 
 fence under any of the sections seventy-six to eighty-six inclusive, nor 
 shall any such person be admitted to bail, except by order of a superior 
 Court of criminal jurisdiction for the province in which the accused stands 
 committed, or of one of the Judges thereof, or, in the province of Quebec, 
 by order of a Judge of the Court of King's Bench or Superior Court. 
 
 700. When any person has been committed for trial by any justice, 
 the prisoner, his counsel, solicitor or agent may notify the committing jus- 
 tice that he will, as soon as counsel can be heard, move before a superior 
 Court of the province in which such person stands committed, or one of the 
 Judges thereof, or the Judge of the County Court, if it is intended to 
 apply to such Judge, under section six hundred and ninety-eight, for an 
 order to the justice to admit such prisoner to bail.
 
 230 BAIL AFTER COMMITTAL. 
 
 2. Such committing justice shall, as soon as may be, after being so 
 notified, transmit to the clerk of the Crown, or the chief clerk of the Court, 
 or the clerk of the County Court, or other proper officer, as the case may 
 be, endorsed under his hand and seal, a certified copy of all informations, 
 examinations and other evidence touching the offence wherewith the pri- 
 soner has been charged, together with a copy of the warrant of commit- 
 ment, and the packet containing the same shall be handed to the person 
 applying therefor for transmission, and it shall be certified on the outside 
 thereof to contain the information concerning the case in question. 
 
 3. If any justice neglects to comply with the foregoing provisions of 
 this section, according to the true intent and meaning thereof, the Court, 
 to whose officer any such information, examination, other evidence, or war- 
 rant of commitment ought to have been delivered, shall, upon examination 
 and proof of the offence in a summary manner, impose such fine upon such 
 justice as the Court thinks fit. 
 
 These sections will be considered together. The proceedings 
 for bail are commenced, as provided in sec. 700, by the prisoner, 
 or his counsel, notifying the committing justice that he will, as 
 soon as counsel can be heard, move either before a superior Court, 
 or a Judge thereof, or before a Judge of a County Court, under 
 fche provisions of sec. 698, for an order to the justice to admit 
 such prisoner to bail. 
 
 As soon as he is thus notified, the justice shall transmit to 
 the proper officer a certified copy of all informations, examina- 
 tions, etc., touching the offence wherewith the prisoner has been 
 charged and also a copy of the warrant of commitment, in a 
 packet under his hand and seal, and the packet may be handed 
 for transmission to the person applying therefor. The packet 
 shall be certified on the outside thereof to' contain the information 
 covering the case in question. 
 
 Neglect upon the part of the justice to comply with these pro- 
 visions will subject him to a fine imposed on summary proceeding 
 by the Court to whose officer he should have transmitted the 
 papers. 
 
 The application for bail is made to a Judye nf a superior 
 Court, or County Court. A justice, or magistrate, has no power 
 to bail aJter an accused person has been actually committed for 
 trial; he is then functus officio. A Judge of a County Court hag 
 go power to grant bail, and no justice on the order of a County 
 Court Judge snail aamit any one to hail who is accused of treason. 
 or of an offence punisnabie with death, or of any of the offences 
 under sees. 76 to 86 inclusive. Sec. 699. 
 
 It is entirely in the discretion of the Judge to whom the appli- 
 cation is made as to whether he will make an order for bail, or 
 not.
 
 BAIL AFTER ACCUSED IS COMMITTED. 231 
 
 When a true bill has been found on an indictment for murder, 
 bail will usually be refused. R. v. Keeler, 7 P. R. 117, and see 
 Ex parte Maguire, (1857) 7 L. 0. R. 57. 
 
 If the depositions afford a presumption of ffuilt, at least so 
 strong that a grand jury would, in the opinion of the Judge before 
 whom tne application 13 made lor bail, firifj a. t.n^ hill against 
 the accused for murder, the application should be refused. H. v. 
 Mullady et al, (1868) 4 P. R. 314."" 
 
 Prisoners charged with murder will not be admitted to bail 
 unless under unusual circumstances, as where facts are ad- 
 duced to the Court which establish that it is unlikely that the 
 indictment can be sustained. R. v. Murphy, (1853) 2 N. S. R. 
 158. 
 
 The Court has undoubted power to admit to bail in case of 
 murder. Re BartJielemy , 1 E. & B. 8. 
 
 Where a habeas corpus has been issued, the Court has power 
 to admit persons to bail when accused of any felony, including 
 murder. R. v. Fitzgerald, 3 IT. 0. R. (O.S.) 300; R. v. Higgins, 
 4 IT. C. R. (O.S.) 83. 
 
 Bail are sureties taken by a person duly authorized for the 
 appearance of a defendant charged with an indictable offence, 
 at a certain day and place, to answer and be justified by law. 
 Hole's Sum., 96 Dalt. 1. 
 
 The defendant is placed in the custody of his bail, who may 
 re-seize him if they have reason to suppose that he is about to fly, 
 and bring him before a justice, who will commit the prisoner in 
 discharge of his bail. Ibid. See sec. 703 and sec. 1088 of the 
 Code. 
 
 If insufficient bail has been taken, or if the sureties become 
 afterwards insufficient, the accused may be ordered by any magis- 
 trate to find sufficient sureties and in default may be committed 
 to prison; and the justice who admitted a defendant to bail upon 
 insufficient sureties is responsible if the defendant does not appear. 
 Hale's Sum., P. 0. 97. 
 
 If the defendant cannot immediately find sureties, he shall 
 be admitted to bail upon finding them at any time before convic- 
 tion. R. v. Shebbeare, 1 Burr. 460. 
 
 It is for the Court to exercise a sound discretion, and if satis- 
 fied that, notwithstanding the ordering of bail, the prisoners are, 
 in view of all the circumstances, likely to be forthcoming at the
 
 232 PRINCIPLES GOVERNING ADMISSION TO BAIL. 
 
 proper time to answer the charge, bail may be ordered. HARRI- 
 SON, C.J., at p. 120, in R. v. Keeler, (1877) 7 P. R. 117, and 
 cases there cited. 
 
 On an application for bail for persons committed for trial on 
 charges of personation at an election, KILLAM, J., said, at p. 132 : 
 " In such cases, there is not only the danger of parties fleeing to 
 avoid punishment, but that bail may be intentionally forfeited to 
 avoid scandal." E. v. Stetwrt et at., (1900) 4 G. C. C. 131. 
 
 Where a. person has been committed upon a charge of wilful 
 murder, found by a coroner's jury upon evidence sufficient to 
 support the finding, a superior Court will not admit him to bail, 
 especially when the accused has made a statement admitting his 
 participation in the affair out of which the charge of murder 
 arises. Ex parte Barronnet, (1852) 1 E. & B. 1. 
 
 "In determining whether or not to admit an accused person 
 to bail, the principal thing to be considered is, therefore, thejpro- 
 bability ot nis appearing for trial, and to determine this question 
 it is proper to consider the nature of the offence charged and its 
 punishment, the strength of the evidence against the accused, his 
 character, his means and his standing. Where a serious doubt 
 exists as to the guilt of the accused and he is entitled to the 
 benefit of every reasonable doubt, his application for bail should 
 be granted. Then again, if, on the evidence, it stands indifferent 
 wnetner the accused, is guiiiy, or innocent, the rule generally is 
 to admit Him to Dan: but, if, on the contrary, his guilt is beyond 
 dispute, the general rule is not to grant the application for bail 
 unless till? opportunities to escape do not appear to be possible and 
 
 the~ probability of his appearing for trial is consequently con- 
 
 siderable, if not sure." WURTELE, J., at p. 193, in Ex parte 
 Fortier, (1902) 6 U~ C. C. 191, 13 Q. E. K. B. 151. 
 
 The test to^govern the discretion of the Court on an applica- 
 tion for bail is the probability of the accused appearing to take 
 Tns trial. The dourt in applying the test will be guided by a 
 consideration of the nature of the crime charged, the severity 
 of the possible punishment^ and the probability of a conviction. 
 R^v. (iottfriedson, (1906) 10 C. C. C. 239. 
 
 .A superior Court has jurisdiction to admit to bail while the 
 preliminary inquiry is pending before the magistrate, several re- 
 mands having taken place without the Crown tendering any evi- 
 dence, the reason offered being that witnesses were required from 
 a distance. In this case, the Judge made it a condition that the 
 proposed sureties must attend before the magistrate and submit
 
 PRINCIPLES GOVERNING ADMISSION TO BAIL. 233 
 
 to an examination as to their means and property and their 
 reliability. R. v. Hall, (1907) 12 C. C. C. 492; and see R. v. 
 Cox, (1888) 16 0. R. 228. 
 
 The Judges of a superior Court, in the plenitude of that power 
 which they enjoy at common law, may in their discretion admit 
 persons to bail in all cases whatsoever, though committed by jus- 
 tices of the peace, or others, for crimes in which inferior jurisdic- 
 tions would not venture to interfere, and the only exception to 
 their discretionary authority is where the commitment is for a 
 contempt, or in execution. R. v. Maries, 3 East. 163, 2 Hale 129. 
 2 Hawk. eh. 15; Rudd's Case, 1 Cowper, at p. 333, and see the 
 cases cited in Burn's Justice, at p. 370. 
 
 Even where the commitment is in execution, the Court, where 
 a certiorari has issued to bring up a conviction under which a 
 party is in prison, will admit him to bail until the case is deter- 
 mined by the Court. R. v. Lord, 16 L. J. M. C. 15. 
 
 The power, however, is to be exercised in the discretion of the 
 Court, and none can claim its benefits de jure. 2 Rale 129. 
 
 The Judges seldom admit a person to bail where magistrates 
 have properly refused it, without some particular circumstances 
 are shewn to exist in his favour. Bac. Ab. Bail. U. R. v. TJa?- 
 lagker, 7 Ir. C. L. K. 19. 
 
 The ill-health of the party in custody is not of itself sufficient 
 ground to induce the Court to bail him, but where he has been 
 for some time in prison, so that his life is actually in danger, 
 the Court might perhaps bail. R. v. Bishop, 1 Chit. C. L. 99, 1 
 Stra. 9. They will not admit him to bail where the complaint is 
 constitutional. R. v. Wyndham, 1 Stra. 4. Nor where the illness 
 arises from the acts of the prisoner. Harvey of Comb's Case, 10 
 Mod. 334. 
 
 A person out on bail is in custody and he is constructively in 
 gaoij and he has the same right to be released from this custody 
 as he would have to be released from imprisonment. Per WUR- 
 TELE, J., in ti. v. dameron, (1897) 1 C. O. C. 169.^ 
 
 An order for bail may be rescinded and the accused re-com- 
 mitted, if it be shewn that the bail put in was fictitious. R. v. 
 Mason, 5 P. B. 15. 
 
 A witness committed on a bench warrant for perjury may be 
 released on bail by the same Judge who made the order of com- 
 mittal. Re Ruthven, 2 C. C. C. 39.
 
 234 PRINCIPLES GOVERNING ADMISSION TO BAIL. 
 
 Where the charge for which a person has been committed for 
 trial is a misdemeanour at common law, and not provided for in 
 the Code, one justice of the peace may commit for trial and also 
 admit to bail as at common law. R. v. Cole, (1902) 5 C. C. C. 
 330. 
 
 " I should be very slow to admit to bail a person who has been 
 arrested" or committed for extra Jition. I cannot recall an m- 
 stance of its having been done, though possibly a search, had I 
 the time to make it, might shew that it is not absolutely without 
 precedent." OSLER, J.A., in Re Watts, (1902) 5 0. C. C. 538. ~ 
 
 The sureties ought to be at least two men of ability, but whose 
 sufficiency, as well as the sum to be expressed in their recogniz- 
 ance, are, it is said, left in a just degree to the discretion of the 
 magistrates, and, therefore, they may examine them upon oath as 
 to the value of their property. 2 Hale 125. 
 
 The Judge granting the order for bail directs or fixes the 
 amount of the bail, so that what the justices or magistrates who 
 are to admit to bail should be most concerned about is the " suffi- 
 ciency " of the bail. The accused should produce, or procure, such 
 sureties as, in the opinion of the justice or justices, will be suffi- 
 cient to ensure the appearance of the accused at the time and 
 place appointed for his trial. Each of the sureties should be well 
 able to answer the sum in which he is bound. The sureties should 
 justify, that is, make affidavit, as to their being freeholders, or 
 householders, and that they are worth the amount for which they 
 have become surety, over and above what will pay their debts and 
 liabilities and every, sum for which they are liable, and setting out 
 a description of the property owned by the sureties. 
 
 The recognizance should be in Form No. 28, and moist be 
 entered into before two justices. A recognizance can be taken by 
 a police magistrate, or a stipendiary magistrate, they having the 
 power of two justices. 
 
 Where a prisoner has been tried and found guilty of murder 
 and sentenced to death, but an appeal secured a new trial, he 
 should not be admitted to bail pending his second trial unless 
 there has been " an unreasonable and unjust delay " upon the 
 part of the Crown in bringing on the second trial. McCraw v. 
 The King, (1907) 13 C. C. C. 337. 
 
 As to depositing cash in lieu of giving bail in the ordinary 
 way, "see Eobinsonv. Dish-let of SaawicTi, 20 C. C. C. 241.
 
 ORDER FOR BAIL BAILED PERSON ABSCONDING. 235 
 ORDER FOR BAIL. 
 
 701. Upon application for bail as aforesaid to any such Court or 
 Judge, the same order concerning the prisoner being bailed or continued in 
 custody, shall be made as if the prisoner was brought up upon a habeas 
 corpus. 
 
 702. Whenever any justice or justices admit to bail any person who 
 is then in any prison charged with the offence for which he is so admitted 
 to bail, such justice or justices shall send to or cause to be lodged with 
 the keeper of such prison, a warrant of deliverance under his or their hands 
 and seals, requiring the said keeper to discharge the person so admitted to 
 bail if he is detained for no other offence, and upon such warrant of de- 
 liverance being delivered to or lodged with such keeper, he shall forth- 
 with obey the same. 
 
 The justices cannot admit to bail until they have received the 
 order of a Judge granting bail. The order fixes the amount 
 of the bail and the justices will guide themselves accordingly. 
 Any two. justices who have jurisdiction may admit to bail it 
 need not be the justices who committed the accused. The justices 
 shall attach to the warrant of deliverance the order of the Judge 
 directing the admitting of the accused to bail. The warrant of 
 deliverance is to be directed to the keeper of the prison where the 
 accused is detained, and is to be signed by the justices admitting 
 to bail, and must be under seal. For the contents of the warrant, 
 see Form 29. 
 
 PERSON BAILED ABSCONDING. 
 
 703. Whenever a person charged with any offence has been bailed in 
 manner aforesaid, it shall be lawful for any justice, if he sees fit, upon the 
 application of the surety or of either of the sureties of such person and 
 upon information being made in writing and on oath by such surety or by 
 some person on his behalf, that there is reason to believe that the person 
 BO bailed is about to abscond for the purpose of evading justice, to issue 
 his warrant for the arrest of the person so bailed, and afterwards, upon 
 being satisfied that the ends of justice would otherwise be defeated, to 
 commit such person when so arrested to gaol until his trial or until Tie 
 produces another sufficient surety or other sufficient sureties, as the case 
 may be, in like manner as before. 
 
 The procedure to be adopted by the sureties, under the pro- 
 visions of this section, is for one of the sureties, or some person 
 authorized by him, or acting on his behalf, to lay an informa- 
 tion before a justice of the peace having jurisdiction. And the 
 justice may then issue his warrant for the arrest of the person 
 bailed who is about to abscond. The warrant may be executed 
 in the same manner as a warrant to arrest in the first instance. 
 If the person is apprehended under the warrant, he will appear 
 before the justice in the usual way, and if the justice, after hear- 
 ing the evidence adduced, is satisfied that the ends of justice 
 would otherwise be defeated, he may commit such person to gaol
 
 236 ESTREAT OF RECOGNIZANCES. 
 
 until his trial, or until he produces other sufficient sureties in 
 like manner as before. 
 
 DELIVERY OF ACCUSED TO GAOLER. 
 
 704. The constable or any of the constables, or other person to whom 
 any warrant of commitment authorized by this or any other Act or law 
 is directed, shall convey the accused person therein named or described to 
 the gaol or other prison mentioned in such warrant, and there deliver him. 
 together with the warrant, to the keeper of such gaol or prison, who shall 
 thereupon give the constable or other person delivering the prisoner into 
 his custody, a receipt for the prisoner, setting forth the state and condi- 
 tion of the prisoner when delivered into his custody. 
 
 2. Such receipt shall be in form 30. 
 
 ESTREAT OF RECOGNIZANCE. 
 
 If the condition of a recognizance entered into, either by a 
 party or his 'bail, be broken, the recognizance is forfeited, and on 
 its being estreated, the parties become debtors to the Ctown for 
 the sums in which they are respectively bound. The word estreat 
 (extractum) signifies a true note of an original writing, as amer- 
 ciaments imposed in the rolls of a Court from which they were 
 extracted (or estreated), and it is so used in Westm. ch. 2, Termes 
 de la Ley. Archbold, PI. & Ev. 24th ed., 119. 
 
 For the provisions of the Code relating to the tender of ac- 
 cused by sureties and the estreats of recognizances, see Part XXI. 
 of the Code, sees. 1086 to 1119. 
 
 It seems that the defendant and his bail cannot be called upon 
 their recognizance except on the day on which he is bound to 
 appear; if he is called on any other day, notice must be given of 
 the intention. R. v. Adams, 1 Burns' Justice, 379. 
 
 The bail are not entitled to have their recognizance discharged 
 without submitting to the terms of paying the costs incurred. R. 
 v. Lyon, 3 Burr. 1461 ; R. v. Finmore, 8 T. R. 409 ; R. \. Turner, 
 15 East 570. 
 
 If the principal do not appear and the recognizance be for- 
 feited and the penalty paid by the bail, yet the principal continues 
 amenable to the law whenever he can be taken. The persons, or 
 bodies, of the bail are not liable under the recognizance, if they 
 pay the penalty. R. v. Dalton, 2 Stra. 911, 2 Hale 125. 
 
 See Re McArthur's Bail, (1897) 3 C. 0. C. 195; In re Talbot's 
 Bail, (1892) 23 0. R. 65; R. v. Hamilton, (1899) 3 C. C. C. 1; 
 It. v. Young, (1901) 4 0. C. C. 580; Re Barrett's Bail, (1903) 
 7 C. C. 0. 1; R. v. Bole, (1905) 9 C. C. C. 500; R. v. May, (1905) 
 9 C. C. C. 529; Re Pippy, (1908) 14 C. C. C. 305.
 
 SUMMARY CONVICTIONS. 237 
 
 CHAPTER VIII. 
 
 SUMMARY CONVICTIONS. 
 
 PART XV, OF THE CRIMINAL CODE* 
 
 Interpretation. 
 
 705. In this Part, unless the context otherwise requires, 
 
 (a) " territorial division " means district, county, union of counties, 
 township, city, town, parish or other division or place ; 
 
 (&) "the Court" in the sections of this Part relating to justices 
 stating or signing cases means and includes any superior Court of 
 criminal jurisdiction for the province in which the proceedings in 
 respect of which the case is sought to be stated are carried on ; 
 
 (c) " district " or " county " includes any territorial or judicial divi- 
 sion or place in and for which there is such Judge, justice, justice's 
 Court, officer or prison, as is mentioned in the context ; 
 
 (d) "common gaol" or "prison" for the purpose of this Part means 
 any place other than a penitentiary in which persons charged with 
 offences are usually kept and detained in custody ; 
 
 (e) "clerk of the -peace" includes the proper officer of the Court 
 having jurisdiction in appeal under this Part, and, in the province 
 of Saskatchewan or Alberta, and in the Northwest Territories, means 
 the clerk of the Supreme Court of the judicial district within which 
 conviction under this Part takes place or an order is made. 
 
 APPLICATION OF PART XV. 
 
 706. Subject to any special provision otherwise enacted with respect 
 to such offence, act or matter, this Part shall apply to, 
 
 (a) every case in which any person commits, or is suspected of 
 having committed, any offence or act over which the Parliament of 
 Canada has legislative authority, and for which such person is 
 liable, on summary conviction, to imprisonment, fine, penalty or 
 other punishment ; 
 
 (&) every case in which a complaint is made to any justice in relation 
 to any matter over which the Parliament of Canada has legislative 
 authority, and with respect to which such justice has authority by 
 law to make any order for the payment of money or otherwise. 
 
 It is provided by sec. 29 of the Interpretation Act, E. S. 0. 
 ch. 1, as follows : " Unless the context 1 otherwise requires, a refer- 
 ence in any Act to, (a) The Summary Convictions Act shall be 
 construed as a reference to Part XV. of the Criminal Code." 
 
 In previous chapters, we have dealt fully with the responsibility 
 of justices and magistrates in the performance of their duties 
 and the exercise of their powers within their jurisdiction. Also
 
 238 JURISDICTION IN RECEIVING INFORMATIONS. 
 
 as to the laying of informations and the issuing of warrants and 
 summons, and reference can be had to the chapter dealing with 
 these matters, since there is no necessity for repeating all the 
 authorities given, or the text. 
 
 Jurisdiction. 
 
 707. Every complaint and information shall be heard, tried, deter- 
 mined and adjudged by one justice or two or more justices as directed by 
 the Act or law upon which the complaint or information is framed or by 
 any other Act or law in that behalf. 
 
 2. If there is no such direction in any Act or law, then the complaint 
 or information may be heard, tried, determined and adjudged by any one 
 justice for the territorial division where the matter of the complaint or 
 information arose : Provided that every one who aids, abets, counsels or 
 procures the commission of any offence punishable on summary conviction, 
 may be proceeded against and convicted either in the territorial division or 
 place where the principal offender may be convicted, or in that in which 
 the offence of aiding, abetting, counselling or procuring was committed. 
 
 708. Any one justice may receive the information or complaint, and 
 grant a summons or warrant thereon, and issue his summons or warrant 
 to compel the attendance of any witnesses for either party, and do all other 
 acts and matters necessary preliminary to the hearing, even if by the statute 
 in that behalf it is provided that the information or complaint shall be 
 heard and determined by two or more justices. 
 
 2. After a case has been heard and determined, one justice may issue 
 all warrants of distress or commitment thereon. 
 
 3. It shall not be necessary for the justice who acts before or after 
 the hearing to be the, justice or one of the justices by whom the case is to 
 be or has been heard and determined. 
 
 4. If it is required by any Act or law that an information or com- 
 plaint shall be heard and determined by two or more justices, or that a 
 conviction or order shall be made by two or more justices, such justices 
 shall be present and acting together during the whole of the hearing and 
 determination of the case. 
 
 It was held by BECK, J., in Re Baptiste Paul (No. 2), 20 C. C. 
 C. 161, reversing the decision of SIMMONS, J., in Re Baptiste Paul 
 (No. 1), 20 C. C. C. 159, that a magistrate has no jurisdiction to 
 try a prisoner brought before him in a summary conviction matter 
 by an arrest without warrant in a case where a warrant is required 
 by law, if the prisoner protests before the magistrate against the 
 illegal procedure. 
 
 This decision was followed by WALSH, J., in R. v. Davis, 20 
 C. C. C. 293. It is too late, however, to raise the objection after 
 conviction. R. v. Langlois, 20 C. C. C. 183. 
 
 In Papillo v. R. f 20 C. C. C. 329, CROSS, J ; , came to a conclu- 
 sion directly opposite to that of BECK, J., in Re Baptiste Paul (No. 
 2), supra. 
 
 The examination and punishment of offences in a summary 
 manner by justices of the peace out of the sessions . . . are
 
 JURISDICTION IN RECEIVING INFORMATIONS. 239 
 
 founded entirely upon a special authority conformed and regu- 
 lated by statute. But, where owing to some omissions in the 
 statute the power to convict summarily is not given in express 
 words, the justices may still proceed when it may reasonably be 
 implied from the rest of the statute that such jurisdiction was in- 
 tended to be given them. Paley, 8th ed., p. 16. 
 
 Thus when a statute declared that any person exposing in a 
 public place, where animals are commonly exposed for sale, any 
 animal infected with a contagious or infectious disease, should 
 be deemed guilty of an offence and should be liable to pay a pen- 
 alty not exceeding 20, it was held that, although there were no 
 express words making the penalties recoverable by summary pro- 
 cedure, yet that a jurisdiction was impliedly conferred upon jus- 
 tices to deal summarily with offences under the statute. Cullen v. 
 Trimble, L. E. 7 Q. B. 416, 26 L. T. 691 ; Johnson v. Colam, L. 
 E. 10 Q. B. 544, 32 L. T. 725. 
 
 Whether a Judge or magistrate in any matter has jurisdiction 
 and power to act, depends on the construction of the law invoked 
 as the authority for the jurisdiction and power claimed by him, 
 and the question is essentially one of law and therefore susceptible 
 of being reserved. WURTELE, J., at p. 13;7, in R. v. Paquin, 
 (1898) 2 C. C. C. 134. See R. v. Ackers (No. 3), (1910) 16 C. 
 C. C. 222. 
 
 Xo new offence is cognizable by justices of the peace out of 
 their sessions unless expressly made so by Act of Parliament, nor 
 can any power expressly given to a justice, to do a particular act, 
 be enlarged by inference. Paley, p. 17. 
 
 As the power vested in justices is of a special kind, where any , 
 matter is referred to a particular description of justices the auth- 
 ority of all others should be excluded by that express designation. 
 Dalt. ch. 27. And, therefore, when a statute refers the matter to 
 the next justice, no other but the one answering that description 
 has any authority. Sanders' Case, 1 Wms. Saund. 262. 
 
 If the statute refers the matter to justices in or near the 
 place where i; took place, notwithstanding this it seems that any 
 justice of the county has jurisdiction over it. R. v. Jennings, 3 
 Keb. 383. 
 
 If a statute merely refers the matter to " any two justices/'" 
 these words mean any two justices having jurisdiction by common 
 law or Act of Parliament, and does not enable justices to act out
 
 240 JUSTICES ACTING ALONE, OR TOGETHER. 
 
 of their jurisdiction either in respect of its local limit or other- 
 wise. In re Peerless, I Q. B. 143. 
 
 As already stated in the chapter on jurisdiction, all the justices 
 of each district are equal in authority and the jurisdiction in any 
 particular "case attaches in the first justice, or set of justices, or 
 magistrate, duly authorized, who have possession and cognizance 
 of the case to the exclusion of the separate jurisdiction of all 
 others. R. v. Sainsbury, 4 T. E. 456 ; R. v. Bloom, 15 D. L. R. 484. 
 
 Where power is given to two justices finally to hear and de- 
 termine any offence, or when they are to do any other judicial 
 act, it is necessary that they should be together to hear the evi- 
 dence and to consult together at the time when they give judg- 
 ment. Battye v. Gresley, 8 East 319; R. v. Forrest, 3 T. R. 38. 
 
 We have already dealt at length with the impropriety and 
 illegality of justices acting in cases where they are interested 
 and likely to be biased, or in their own cases. Yet when a justice 
 is assaulted or (in the doing his office especially) abused to his 
 face, and no other justice is present with him, then it seems he 
 may commit such offender until he shall find sureties for the peace, 
 or good behaviour, as the case shall require; but, if any other 
 justice be present, it were fitting to desire his aid. Dalt. 713, R. 
 v. Revel, I Str. 420. 
 
 When a thing is appointed by statute to be done by, or before, 
 one person certain, such thing cannot be done by, or before, any 
 other; and, by strict express designation of one, all others are 
 excludedlmd their proceedings therein are coram non ju&ce. 
 Dalt. ch. bT" Foster's Case, 11 Rep. 59 at p. 64. 
 
 An authority given by statute to two cannot be executed by one. 
 Ibid. 
 
 Whatsoever any one justice alone may do, the same also may 
 lawfully be done by any two or more justices. Ration's Case, 2 
 Salk. 477, Dalt. ch. 6, sec. 8. 
 
 The execution of the powers confided to justices of the peace 
 in summary convictions is generally watched by the Courts with 
 jealousy, such summary convictions being derogatory to the lib- 
 erty of the subject, and all powers given in restraint of liberty 
 must be strictly pursued. Braci/s Case, 1 Salk. 349; Wilkins v. 
 Weight, 2 Or. & M. 191, 201. 
 
 In some cases the justice has a discretionary duty to take cog- 
 nizance of the matter; in others, as is most usual, the duty is
 
 DISCRETION IN JUSTICES TITLE TO LAND. 241 
 
 imperative. Upon this discretionary power it may be observed 
 that, where aii Act of Parliament gives power to justices of the 
 peace to take order in any matter, according to their discretion, 
 this shall be -understood according to the rules of reason, law and 
 justice and not by private opinion. 3 Burns' Justice, p. 137. 
 
 It has been observed by LORD MANSFIELD, C.J., that this dis- 
 cretionary power, where applied to a Court of justice, means 
 sound discretion guided by law. It must be governed by rule, 
 not by humour; it must not be arbitrary, vague and fanciful, but 
 legal and regular. R. v. Wilkes, 4 Burr. 2539. 
 
 " The discretion to be exercised by a Court or a Judge is not 
 a wild, but a sound discretion, and to be confined within those 
 limits within which an honest man, competent to discharge the 
 duties of his office, ought to confine himself." LORD KENYON, 
 in Wilson v. Rastatt, 4 T. E. 757. 
 
 One justice of the peace has power, on the return day of the 
 summons, to adjourn the proceedings until a future day, though 
 the jurisdiction to hear the case is given to two justices. 
 
 Wherever the concurrence of two justices is requisite for any 
 judicial act, they must be present and acting together during the 
 whole of the hearing and determination of the case. 
 
 Where a verbal adjudication was made by two justices in petty 
 sessions and the formal order, being afterwards drawn up, was 
 signed by one on the 1st March and by the other on the 3rd, 
 it was held valid. Ex parte Johnson, 32 L. J. M. C. 193. 
 
 TITLE TO LAND IN QUESTION. 
 
 709. No justice shall hear and determine any case of assault or 
 battery, in which any question arises as to the title to any lands, tene- 
 ments, hereditaments, or any interest therein or accruing therefrom, or as 
 to any bankruptcy or insolvency, or any execution under the process of 
 any court of justice. 
 
 Under sec. 709, it has been held that justices cannot proceed 
 to inquire into and determine by summary conviction any excess 
 of force alleged to have been used in the assertion of title. R. 
 v. Pearson, L. R. 5 Q. B. 237, 22 L. T. 126. 
 
 To oust the summary jurisdiction of justices on the ground 
 that a bona fide question of title arises, it is sufficient to shew that 
 the act complained of as a trespass was committed in the exercise 
 of a supposed right which the alleged trespasser bona fide be- 
 lieved that he possessed. Matthews v. Oarpenter, 16 L. R. Ir. 420: 
 
 c.c.r. 10
 
 24:2 OUSTER OF JURISDICTION. 
 
 The claim, however, must be bona fide, and not a mere pre- 
 tence to oust jurisdiction, whether it raises a question of title, or 
 of any other matter which the justices cannot decide; and it is 
 for the justices to say whether the claim be bona fide, or a mere 
 pretence. R. v. Mussett, 26 L. T. 429; E. v. JJ. Derbyshire, 11 
 W. E. 780, and see R. v. Harran, 20 C. C. C. 72. 
 
 If the assault was independent of the question of title, the 
 fact that there was such a question is no defence, even if the 
 assault arose out of a dispute between the parties as to the title 
 of land. R. v. Edwards, 4 W. E. 287. 
 
 Though the defendants were acting upon supposed rights, yet. 
 if they exceeded what was necessary for the assertion or. protection 
 of these rights and thus committed damage, they were responsible 
 criminally for such cases. R. v. Clemens, [1898] 1 Q. B. 556. 
 And see R. v. Davidson, 45 U. C. E, 91 ; R. \l McDonald, 12 0. R. 
 381. 
 
 This section applies only to common assaults. Miller v. Lea, 
 25 A. R. 428. 
 
 The question is also dealt with in the chapter on jurisdiction, 
 and see 3 Burns' Justice, 138. 
 
 INFORMATION AND COMPLAINT. 
 
 71O. It shall not be necessary that any complaint upon which a justice 
 may make an order for the payment of money or otherwise shall be in 
 writing, unless it is so required by the particular Act or law upon which 
 such complaint is founded. 
 
 2. Every complaint upon which a justice is authorized by law to 
 make an order, and every information for any offence or act punishable 
 on summary conviction, may, unless it is by this Part or by some particular 
 Act or law otherwise provided, be made or had without any oath or 
 affirmation as to the truth thereof. 
 
 3. Every complaint shall be for one matter of complaint only, and 
 not for two or more matters of complaint, and every information shall be 
 for one offence only, and not for two or more offences. 
 
 4. Every complaint or information may be laid or made by the com- 
 plainant or informant in person, or by his counsel or attorney or other 
 person authorized in that behalf. 
 
 See remarks under sees. 654, 655, ante, p. 143. 
 
 The complaint for a fraudulent removal of goods is required 
 by 11 Geo. II., ch. 19, sec. 4, to be made in writing by the land- 
 lord, his bailiff, servant or agent, and where it did not appear on 
 the face of the adjudication, or commitment, that it had been so 
 made, the party committed under it was discharged. R. v. Fuller, 
 2 D. & L. 98.
 
 TIME LIMIT FOE LAYING INFORMATION. 243 
 
 It was held in England, under the statutes in force there, that 
 a Court of summary jurisdiction has no power to convict of a 
 common assault, unless the party aggrieved, or some one on his 
 behalf, complains of the assault, with a view to the adjudication of 
 the Court upon it. Nicholson v. Booth, 57 L. J. M. 0. 43, 58 L. 
 T. 187; Pickering v. Willoughby, [1907] 2 K. B. 296, tout our 
 Criminal Code contains no such limitation as to who can prose- 
 cute. 
 
 WHEN INFORMATION SHOULD BE LAID. 
 
 ! 
 
 The information must be laid, or complaint made, within the 
 time limited by the particular statute on which it is founded; if 
 no period is fixed by the statute, it must be within six calendar 
 months from the time when the matter of the information arose, 
 except in the North-West Territories and the Yukon Territory, 
 where the time within which the complaint shall be made, or in- 
 formation laid, shall be twelve months from the time when the 
 matter of the complaint or information arose. See sec. 1142 of 
 the Code. See R. v. Edwards, (1898) 2 0. C. C. 96. 
 
 A summary prosecution in Ontario for erecting a wooden build- 
 ing within the fire limits contrary to a municipal by-law is barred 
 if complaint is not laid until after the expiration of six months 
 from the date of the offence. R. v. McKinnon, (1902) 5 C. 0. C. 
 301. 
 
 A summary conviction alleging the offence as having been com- 
 mitted " within the space of six months last past previous to the 
 information," does not disclose an offence within six months be- 
 fore the laying of the information and is invalid. R. v. Boutilier, 
 8 C. C. C. 82. See also R. v. Breen, 8 C. C. 0. 146, and R. v. 
 Wanibolt, 14 C. 0. C. 160. 
 
 Where the proceedings are in respect to a debt due to the 
 Oown and there is no express provision as to limitation applying 
 to the Crown, a general statute of limitations will not govern. 
 R. v. Lee How, (1901) 4 C. C. C. 551. 
 
 It was decided in R. v. Clark (No. 2), 12 C. C. C. 485, that, 
 where the time limit for bringing a prosecution is contained in a 
 separate section of the statute creating the offence, it is not neces- 
 sary that the conviction should shew on its face that the limitation 
 has not been exceeded. 
 
 Where the offence is the neglect, or refusal, to do an act, as to 
 supply a copy of accounts, the six months' limit dates from the
 
 244 RESPONSIBILITY OF INFANTS AND JOINT OFFENDERS. 
 
 time of the demand and refusal. Dudley Gas Co. v. Warmington, 
 50 L. J. M. C. 69, 44 L. T. 475. 
 
 WHO is EESPONSIBLE TO THE LAW. 
 
 A married woman may be convicted on a penal statute if she 
 has committed an offence without the coercion, actual or implied, 
 of her husband, and it is not necessary that her husband should be 
 joined in the conviction. R. v. Crofts, 2 Str. 1120, and see R. v. 
 Cruse, 8 C. & P. 541. 
 
 As to the responsibility of infants, see pp. 43, 44, supra. 
 
 The general rule of law is that no one can be made criminally 
 responsible for the acts of third persons, but in some cases a man 
 may be brought within a penal statute by the acts of his agents or 
 servants. The employment of an agent in the defendant's usual 
 course of business is sufficient evidence in such cases, whence the 
 magistrates, if they think fit, may presume that such an agent was 
 authorized to do the prohibited act with which it is sought to 
 charge the principal. Attorney -General v. Siddon, 1 C. & J. 220 ; 
 R. v. Stephens, 35 L. J. Q. B. 251 ; Bosley v. Davies, 1 Q. B. 
 D. 84. 
 
 As to when the keeper of a place of public resort is responsible 
 as principal for the acts of his servants, and the servant is respon- 
 sible as aider and abettor, see Wilson v. Stewart, 3 B. & S. 913. 
 
 As to aiding, abetting, counselling or procuring the commis- 
 sion of offences, see sees. 69 and 70 of the Code, and Chap. II., 
 p. 59. 
 
 An aider and abettor may be convicted, though the principal 
 be acquitted. R. v. Burton, 32 L. T. 539, 13 Cox 71. 
 
 An information may be against one of several joint owners of 
 property in proceedings for a wrongful act. R. v. JJ. Mon- 
 mouthshire, 26 L. J. M. C. 183. 
 
 Where the act is such that several may join in it, all the 
 offenders may be legally included in the same information and 
 conviction. Uz parte Biggins, 26 J. P. 244; R. v. Cridland, 7 El. 
 &- B. 853: R. v. Ton Moon. 19 C. C. C. 33, 21 M. K. 527; H. T. 
 Bloom, 15 D. L. E. 484. 
 
 But, where separate convictions were drawn up upon a joint 
 information, the Court refused to order the justices to alter the 
 conviction by making it a joint one. Re Glee and Osborne, 21 L. 
 J. M. 0. 112.
 
 REQUISITES OF INFORMATION. 245 
 
 On a joint information, a person is not entitled as of right to 
 be tried separately, it is a matter of discretion for the justices. 
 R. v. Littlechild, L. R. 6 Q. B. 293. 
 
 REQUISITES OF INFORMATION. 
 
 Whenever the information is required by statute to be in writ- 
 ing, that form must be preserved, but, unless expressly directed, it 
 is not necessary that it should be so. R. v. Millard, 22 L. J. M. C. 
 108 ; Ex parte Perham, 5 H. & N. 30. 
 
 As we have seen, unless the letter of the statute so requires it, 
 it is not requisite that the information, or complaint, be upon 
 oath, unless of course a warrant to apprehend the person charged 
 is issued in the first instance instead of a summons, or a search 
 warrant is applied for; in that event the information must always 
 be under oath. See R. v. McDonald, (1896) 3 C. 0. C. 287. 
 
 The information stated in general terms that the informant 
 had reason to believe, and did suspect and believe, that the party 
 charged had committed an offence, without stating the grounds of 
 his information, and, apparently, without making them known to 
 the magistrate. Held, that there had been no proper information 
 upon which a warrant could issue. It is the duty of the justice 
 before issuing the warrant to examine upon oath the complainant 
 or his witnesses as to the facts upon which such suspicion and 
 belief are founded and to exercise his own judgment thereon. 
 See Ex parte Grundy, (1906) 12 C. 0. C. 65; Ex parte Coffon, 
 (1905) 11 0. C. C. 48, and Ex parte Boyce, 24 N. B. R. 347. 
 
 If the information charges more than one offence, it should be 
 amended by striking out all but one of the charges, and only the 
 evidence on that charge should be heard. See R. v. Austin, (1905) 
 10 C. 0. C. 34, and R. v. Hazen, 20 A. B, 633, and R. v. Alward, 
 25 0. B. 519. 
 
 The offence may be laid as having been committed on divers 
 days and times between two dates. Onley v. Gee, 30 L. J. M. C. 
 222. 
 
 - As to whether a charge is to be treated as for one offence or 
 iere than one, and as to treating a series of continuous acts as one 
 offence, see notes to R. v. Michaud, 17 C. C, C ; . at pp. 97-103. 
 
 The inclusion of two offences in one information is a " defect 
 in substance " within the meaning of sec. 724 of the Code, post, >^ 
 and no objection to the information can be allowed in respect of 
 it. If on the hearing it is objected that the information discloses
 
 246 ISSUE OF WARRANT OR SUMMONS. 
 
 two offences, the prosecutor may be required to elect on which 
 charge he will proceed, and the information amended accordingly. 
 
 An information is not objectionable on the ground that it 
 charges in the alternative several different matters, acts or omis- 
 sions which are stated in the alternative in the statute by which 
 the offence is denned : R. v. Mali Sam, 19 C. 0. C. 1. 
 
 See sec. 725, post, as to charging two offences, and as to un- 
 certainty in stating the offences to have been committed in dif- 
 ferent modes, etc. 
 
 It must be determined from the construction of the particular 
 statute whether several acts in the same day, and acts extending 
 over several days, constitute but one offence or several. R. V. 
 Scott, 33 L. J. M. O. 15, and see Bartholomew v. Wiseman, 56 J. 
 P. 455. 
 
 SUMMONS AND WARRANT. 
 
 711. The provisions of Parts XIII. and XIV. relating to compelling 
 the appearance of the accused before the justice receiving an information 
 for an indictable offence and the provisions respecting the attendance of 
 witnesses on a preliminary inquiry and the taking of evidence thereon, 
 shall, so far as the same are applicable, except as varied by the sections 
 immediately following, apply to any hearing under the provisions of this 
 Part : Provided that whenever a warrant is issued in the first instance 
 against a person charged with an offence punishable under the provisions 
 of this Part, the justice issuing it shall furnish a copy or copies thereof, 
 and cause a copy to be served on the person arrested at the time of such 
 arrest. 
 
 2. Nothing herein contained shall oblige any justice to issue any 
 summons to procure the attendance of a person charged with an offence 
 by information laid before such justice whenever the application for any 
 order may, by law, be made ex parte. 
 
 All matters relating to the issue of summons and warrants, and 
 practice pertaining to the same, are fully gone into in Chap. VI., 
 and reference can be made thereto for further precedents. 
 
 It is discretionary with the magistrate to issue either a sum- 
 mons or a warrant. MEREDITH, C.J., at p. 413, in R. v. McGre- 
 gor, (1895) 2 C. C. C. 410. See Murfina v. Sauve, (1901) 6 C. 
 C. C. 275; R. v. Ettinger, (1899) 3 C. 0. C. 387. 
 
 The application of sub-sec. 2 of sec. 711 is illustrated by the 
 case of the Public Health Act, or Health By-law, providing for 
 the condemnation of unsound meat upon the order of a justice; 
 such order may be made ex parte without notice to the owner of 
 the meat. R. v. White, 43 J. P.? Thomas v. Van Os, (1900) 2 Q. 
 B. 448; Wai/e v. Thompson, 15 Q. B. D. 342.
 
 SUMMONS OR WARRANT BACKING WARRANTS. 247 
 
 If the information be for a penalty, or the non-payment of 
 money, the justice should in general issue a summons in the first 
 instance, before he grants a warrant, unless there is a probability 
 that the party will abscond as soon as he knows of the information, 
 or the object of the prosecution will otherwise likely be defeated. 
 
 Attention is called to the proviso in sec. 711 that, where a 
 warrant is issued in the first instance, the justice issuing it shall 
 furnish a copy or copies thereof and cause a copy of it to be served 
 on the person arrested at the time of such arrest. 
 
 This proceeding differs from an arrest under a warrant for an 
 indictable offence, where no copy is required to be served, it only 
 being necessary for the person executing the warrant to have it 
 with him and to produce it if required. See sec. 40 of the Code. 
 
 Sec. 711 incorporates into this Part the provisions of Parts 
 XIII. and XIV. of the Code relating to compelling the appear- 
 ance of the accused before the justice, and respecting the attend- 
 ance of witnesses and the taking of evidence as set forth in sec- 
 tions 658-661 of the Code, and the reader is referred to pages 144 
 et seq., where those sections are set out with comments, and cases 
 illustrating the rules which govern the issuing of a summons and 
 the service of the same, and the formalities surrounding the issue 
 of warrants and executing same. 
 
 BACKING WARRANTS. 
 
 712. The provisions of section six hundred and sixty-two relating to 
 the endorsements of warrants shall apply to the case of any warrant issued 
 under the provisions of this Part against the accused, whether before or 
 after conviction, and whether for the apprehension or imprisonment of any 
 such person. 
 
 Section 662 above referred to has been printed at page 167, 
 supra, with cases illustrating its meaning, to which may be added 
 the following: 
 
 The fact of a person being arrested outside the jurisdiction of 
 the justice without the warrant being backed, although irregular, 
 is not a ground for releasing the accused on habeas corpus. R. v. 
 Whiteside, (1904) 8 0. C. C. 478. 
 
 SUMMONS FOR WITNESS OUT OF JURISDICTION. 
 
 713. A summons may be issued to procure the attendance, on the 
 hearing of any charge under the provisions of this Part, of a witness who 
 resides out of the jurisdiction of the justice before whom such charge is 
 to be heard. 
 
 2. Every such summons and every warrant issued to procure the 
 attendance of a witness, whether in consequence of refusal by such witness
 
 248 TEIAL IN OPEN COURT. 
 
 to appear in obedience to a summons or otherwise, may be respectively 
 served and executed by the constable or other peace officer to whom the 
 same is delivered or by any other person, as well beyond as within the 
 territorial division of the justice who issued the same. 
 
 By sec. 711 the provisions of Parts XIII. and XIV. respecting 
 the attendance of witnesses on a preliminary hearing and the tak- 
 ing of evidence thereon, shall, as far as the same are applicable, 
 except as varied in this part, apply to any hearing under the pro- 
 visions of this part. Reference as to any of these matters should 
 be made to sees. 671 to 677, both inclusive, in the preceding chap- 
 ter and the notes thereon and cases cited. 
 
 As to who are competent and compellable witnesses, see the 
 previous chapter and the Canada Evidence Act, post. 
 
 TEIAL OPEN COURT. 
 
 714. The room or place in which the justice sits to hear and try any 
 complaint or information shall be deemed an open and public Court, to 
 which the public generally may 'have access so 'far as the same can con- 
 veniently contain them. 
 
 By sec. 645 of the Oode, the Court or Judge or justice may 
 order that the public be excluded from the room and place in which 
 the Court is being held during the trial of the offences specified 
 and set out in that section. 
 
 And such an order may be made in any other case in which the 
 Court, Judge or justice may be of opinion that the same will be in 
 the interests of public morals. 
 
 Note the distinction in this respect between a preliminary 
 hearing of an indictable offence, which, under section 679 of the 
 Code, may be in private at the magistrate's discretion, and the 
 trial of a summary conviction charge, where the rule is that it 
 must be in an open and public court, except as qualified by sec- 
 tions 714 and 645. 
 
 Police, district and stipendiary magistrates have the same 
 powers to preserve order in Courts held by them, and may exer- 
 cise the like ways and means of enforcing order as are used in 
 like cases and for the like purposes by any Court in Canada. This 
 power is vested in those magistrates by sec. 607 of the Code, as 
 follows : 
 
 PRESERVING ORDER IN COURT. 
 
 607. Every Judge of the Sessions of the Peace, chairman of the Court 
 of General Sessions of the Peace, police magistrate, district magistrate or 
 stipendiary magistrate, shall have such and like powers and authority to
 
 PRESERVING ORDER IN COURT. 249 
 
 preserve order in Courts held by them during the holding thereof, and by 
 the like ways and means as now by law are or may be exercised and used 
 in like cases and for the like purposes by any Ck>urt in Canada, or by the 
 Judges thereof, during the sittings thereof. 
 
 This section, does not confer such powers upon justices of the 
 peace. What powers they have as to preserving order in court 
 exist at common law and may be gathered from the following de- 
 cisions. 
 
 " Where a power resides in any Court, or Judge, to commit for 
 contempt, it is the peculiar privilege of such Court or Judge to 
 determine upon the facts, and it does not properly belong to any 
 higher tribunal to examine into the truth of the case. But, how- 
 ever indecent may have been the conduct of the parties committed, 
 we cannot do otherwise than discharge them from custody on this 
 warrant. It is not denied that a justice of the peace, while sitting 
 in the discharge of his duty, examining parties upon a criminal 
 charge, has power to protect himself from insult and to repress 
 disorder by committing for contempt any person who shall vio- 
 lently, or indirectly, interrupt his proceedings, or conduct himself 
 insultingly towards him. And it may be assumed for the present 
 that, where any person present behaves himself in such a manner 
 as to obstruct the justice's proceedings, he may order him at once 
 into custody and direct him to be withdrawn, so as to remove at 
 once the obstruction to the administration of justice ; or may com- 
 mit him till he finds sureties to keep the peace." ROBINSON, C.J., 
 in Re Clarke and Heermans, 7 TJ. 0. B. at p. 225. 
 
 In Young v. Baylor, 23 0. R. 513, 20 A. R. 645, it was held 
 that a justice of the peace holding Court under the Summary 
 Convictions Act had no power summarily to punish for contempt 
 facie curice, at any rate without a formal adjudication and a war- 
 rant setting out the contempt. Armour v. Boswell, 6 0. S. 153, 
 352, 450, followed ; but that the justice had the power to remove 
 persons who by disorderly conduct obstructed or interfered with 
 the business of the Court. If the justice had issued his warrant 
 for the commitment of the plaintiff and had stated in it sufficient 
 grounds for his commitment, the Oourt could not have reviewed 
 the facts alleged therein, but there being no warrant the justice 
 was bound to establish such facts, upon the trial, as would justify 
 his course. 
 
 In Armour v. Boswell, 6 0. S. 153, 352 and 450, the plaintiff 
 was brought before the defendants, justices of the peace, charged 
 with an offence under 4 Wm. IV., ch. 4, for which the defendants 
 had power to convict summarily ; and, while before the defendants,
 
 250 PRESERVING ORDER CONDUCT OF TRIAL. 
 
 the plaintiff, it was alleged, assaulted one of the defendants and 
 insulted them and they directed a constable to arrest him without 
 issuing any warrant of commitment, and he was arrested and kept 
 in custody for a short time, and for this he recovered damages 
 against the defendants, because they had acted illegally in direct- 
 ing his arrest without a warrant. 
 
 The reason given for this decision was that jurisdiction to try 
 offences summarily has been conferred upon justices of the peace 
 by the statute law only, and they have no other powers than those 
 which are given to them by such law, and in the absence of any 
 statute law conferring such powers upon them, otherwise than as 
 above stated, they will exercise the same at the peril of incurring 
 an action for damages. 
 
 It would, therefore, seem that all that a justice of the peace 
 can do, in case of a contempt in the face of the Court, is to order 
 a constable to remove the offender from the court room or to ad- 
 journ the hearing. 
 
 It would seem that magistrates can only exercise this power 
 when the contempt is in the face of the Court and not outside 
 the Court room. R. v. Lefroy, L. R. 8 Q. B. 134. 
 
 As to witnesses refusing to be sworn and examined, or neglect- 
 ing to produce documents and the powers of justices respecting 
 the same, see sec. 678 of the Code and notes thereto in previous 
 chapter. 
 
 CONDUCT OF TRIAL. 
 
 715^ The person against whom the complaint is made or information 
 laid shall be admitted to make his full answer and defence thereto, and 
 to have the witnesses examined and cross-examined by counsel, solicitor 
 or agent on his behalf. 
 
 2. Every complainant or informant in any such case shall be at liberty 
 to conduct the complaint or information, and to have the witnesses 
 
 examined and cross-examined, by counsel or attorney on his behalf. 
 
 i 
 
 716. Every witness at any hearing shall be examined upon oath or 
 affirmation, by the justice before whom such witness appears for the pur- 
 pose of being examined. 
 
 2. A Judge of any superior or County Court may appoint a commis- 
 sioner or commissioners to take the evidence upon oath of any person who 
 resides out of Canada and is stated to be able to give material information 
 relating to an offence for which a prosecution is pending under this Part, 
 or relating to any person accused of such offence, in the circumstances and 
 in the manner, mutatis mutandis, in which he might do >so under section 
 nine hundred and ninety-seven ; and all the provisions of the said section, 
 in respect of matters arising thereunder, shall apply mutatis mutandis 
 to matters arising under this section : Provided that no such appointment 
 shall be made without the consent of the Attorney-General.
 
 CONDUCT OF TRIAL BY JUSTICES. 251 
 
 In all cases wheresoever any man is authorized to examine wit- 
 nesses, such examination shall be taken and construed to be as the 
 law will, i.e., upon oath. Dolt., c. 6, s. 6. 
 
 The oath must be administered to each witness before he is ex- 
 amined, and administering it afterwards is irregular, for the wit- 
 ness ought to be under the sanction of an oath the whole time he 
 is giving his evidence. R. v. Kiddy, 4 D. & R. 734. 
 
 The judicial discretion which a justice has to exercise in cases 
 brought before him must be based on the evidence taken before 
 him, and it is not competent for him to act upon evidence taken 
 before another justice. R. v. Guerin, 58 L. J. M. C. 42, and see 
 page 196, supra. 
 
 A person accused of selling intoxicating liquor must not be 
 refused an analysis of the liquor found on his premises, if he 
 denies that the liquor sold was intoxicating: E. v. Stephenson, 20 
 C. 0. C. 297. 
 
 The evidence must support the charge by proof of every 
 material fact, assigning a specific date and place to the offence. 
 E. v. Highmore, 2 L. J. Raym. 1220, R. v. Jeffries, 1 T. R. 241. 
 
 The degree of evidence and the credit due to the witnesses, 
 provided it be legally admissible, is exclusively for the judgment 
 of the justice. 
 
 As to the magistrate being himself called as a witness, see Ex 
 parte Flannagan, (1897) 2 0. C. C. 513, 34 N. B. R. 326; Ex 
 parte Hebert, (1898) 4 C. C. C. 153, and see supra, page 76. 
 
 As to appearance by counsel, or solicitor, see E. v. Doherty, 
 (1899) 3 C. C. 0. 505; R. v. O'Hearn, (1901) 5 C. C. C. 187. 
 
 The information charged two offences; upon objection being 
 taken at the hearing the information was amended so as to 
 charge one offence, and that on a date different from either of the 
 dates named in the summons served. The defendant was then, for 
 the first time, made aware of the actual charge which he was 
 called upon to meet. He applied for an adjournment and this 
 was refused, and the trial proceeded without defendant having 
 any witnesses present and without opportunity to present a de- 
 fence apparently substantial and bona fide. The defendant was 
 convicted and imprisoned. Held, on habeas corpus and certiorari 
 proceedings, that the refusal of the magistrate to grant the ad- 
 journment asked was in fact and deed to deny him that oppor- 
 tunity " to make full answer and defence which the Oode says he 
 shall have." To permit the confinement of the defendant to con-
 
 252 OBJECTIONS AT TRIAL TRYING SEVERAL CASES TOGETHER. 
 
 tinue " would, under the circumstances, be contrary to natural 
 justice and to the principles of our law." R. v. Eli, (1886) 10 0. 
 R. 727-733. An order will issue for the discharge of the prisoner 
 from custody. ANGLIN, J., pp. 532 and 533, in R. v. Farrell, 
 (1907) 12 C. C. 0. 524. See R. v. Butterfield, (1909) 15 C. C. 
 C. 101. 
 
 OBJECTIONS AT TRIAL. 
 
 Certain irregularities in procedure will be waived unless ob- 
 jected to at the trial, and it will be too late to raise them after- 
 wards. 
 
 For example, an objection to the jurisdiction because of the 
 arrest of the accused without a warrant in cases where such an 
 arrest is illegal : Re Baptiste Paul, 20 C. C. O. 161 ; R. v. Lang- 
 lois, 20 C. C. O. 183. An objection to the jurisdiction because of 
 the absence of a sworn information preceding the warrant upon 
 which the accused was arrested and brought before the magistrate. 
 R. v. Davis, 20 C'. 0. C. 293. 
 
 An objection on the ground of an irregular adjournment of 
 the hearing. Ex parte Giberson, 18 0. O. C. 355, R. v. Heffernan, 
 13 0. R 616. 
 
 On the other hand an objection to the validity of a municipal 
 by-law, on the ground of its being ultra vires, may be taken on an 
 appeal against a conviction under it, although not raised before 
 the magistrate, and section 753 of the Code does not apply to 
 such an objection: Upton v. Brown, 21 0. C. C. 190. See, also, 
 
 cases on this point collected at page 151, supra. 
 
 \ 
 
 TRYING SEVERAL CASES TOGETHER. 
 
 Upon more than one information for separate offences of a 
 similar character being lodged against a person, a magistrate 
 should not' hear evidence at the same time as to all the charges, 
 where some of the evidence would be relevant to one of the 
 charges but not to the others : R. v. Lapointe, 20 C. C. C. 98, and 
 see Hamilton v. Walker, [1892] 2 Q. B. 25 ; R. v. Fry, 67 L. J. 
 Q. B. 67; R. v. McBerny, 3 C. C. C. 339, and R. v. BurTce (No. 
 2), 8 C. C. O. 14. 
 
 See, however, Ex parte Monahan, 17 C. C. C. 53. 
 
 If the justice is trying two or more charges against the game 
 person, it is better not to reserve judgment on the first case tried
 
 TAKING A VIEW EXCEPTIONS AND EXEMPTIONS. 253 
 
 until after the evidence on the other or others is heard, as there 
 are conflicting decisions as to the validity of such a course. See 
 R. v. McBerny, 3 C. C. C. 339 ; Hamilton v. Walker, 56 J. P. 583, 
 [1892] 2 Q. B. 25; R. v. Bullock, 8 0. 0. C. 8; R. v. Sing, 6 C, 
 C. C. 156, against its validity, and R. v. Fry, 19 Cox. 135 ; R. v. 
 I man Din, 18 C. C. C. 82 ; Ex parte Monahan, 17 C. C. C, 53, in 
 favour of it. 
 
 TAKING A VIEW. 
 
 A magistrate has no right to take a view of anything in re- 
 spect of which evidence has been given before him, at least with- 
 out the consent of both parties. R. v. Crawford, 21 C. C. C. 70; 
 and Re Sing Kee, 5 O. C'. C. 86. 
 
 PROCEDURE ON NON-APPEARANCE OF ACCUSED. 
 
 The prisoner was charged with being a vagrant, and, having 
 failed to appear on the return day of the summons, he was con- 
 victed without any proof having been made of the service of the 
 summons on him. The conviction was quashed. R. v. Levesque, 
 8 C. C. 0. 505. 
 
 EXCEPTIONS AND EXEMPTIONS. 
 
 " 717. Any exception, exemption, proviso, excuse or qualification, 
 whether it does or does not accompany in the same section the description 
 of the offence in the Act, order, by-law, regulation or other document 
 creating the offence, may be proved by the defendant, but need not be 
 specified or negatived in the information or complaint, and whether it is or 
 is not so specified or negatived, no proof in relation to the matter so 
 specified or negatived shall be required on the part of the informant or 
 complainant." 
 
 The above is sec. 717 as amended in 1909. See R. v. Boomer, 
 (1907) 13 C. C. C. 98, decided before that amendment. 
 
 As a general rule, the affirmative is to be proved and not the 
 negative of any fact which is stated, unless under peculiar cir- 
 cumstances when the general rule does not apply; for, when 
 the fact lies peculiarly within the knowledge of one party, it is 
 easy for him to prove it, but often impossible for the other. R. v. 
 Turner, 5 M. & S. 206. 
 
 NON-APPEARANCE OF THE ACCUSED. 
 
 718. In case the accused does not appear at the time and place 
 appointed by any summons issued by a justice on information before him 
 of the commission of an offence punishable on summary conviction then,
 
 254 NON-APPEARANCE OF THE ACCUSED. 
 
 if it appears to the satisfaction of the justice that the summons was duly 
 served a reasonable time before the time appointed for appearance, such 
 justice may proceed ex parte to hear and determine the case in the absence 
 of the defendant, as fully and effectually, to all intents and purposes, as 
 if the defendant had personally appeared in obedience to such summons, 
 or the justice may, if he thinks fit, issue his warrant as provided by sections 
 six hundred and fifty-nine and six hundred and sixty and adjourn the hear- 
 ing of the complaint or information until the defendant is apprehended. 
 
 In case the accused does not appear, there are two modes of 
 procedure open to the justice: 
 
 (1) If it appears to his satisfaction that the summons was 
 duly served a reasonable time before the time appointed for ap- 
 pearance, he may proceed ex parte to hear and determine the case 
 in the absence of the defendant as fully and effectually to all in- 
 tents and purposes as if the defendant had personally appeared. 
 As to service of summons " a reasonable time before/' see Re 
 O'Brien, 10 O. C. C. 142 ; R. v. Craig, 10 C. C. C. 249 ; R. v. 
 Levesque, 8 C. C. C. 505; R. v. Smith, 16 C. C. 0. 425, and R. v. 
 Mabee, (1889) 17 0. E. 194. 
 
 (2) Or the justice may issue his warrant for the apprehension 
 of the defendant as provided by sees. 659 and 660, and adjourn 
 the hearing until the defendant is apprehended. 
 
 In proceeding in the absence of the defendant there must be a 
 due examination of witnesses under oath to substantiate the 
 charges as fully and with the same formality as if he were present 
 and made his defence. 
 
 It is to be remembered that the accused may appear by coun- 
 sel, solicitor or agent, so that if the defendant does not appear per- 
 sonally, but bv counsel,, solicitor or agent r then the provisions of 
 this section 718 will not apply. The appearance of the accused 
 "at_tbfl timp. and planp appointed" means either his personal 
 appearance or by counsel, solicitor or agent. 
 
 If the accused does not appear and the justice proceeds ex 
 parte, the information cannot be amended by substituting a dif- 
 ferent offence from that set out in the information as laid and 
 which the accused was summoned to defend, and the justice can- 
 not then proceed to conviction on the amended information. 
 
 " It seems so contrary to all principle that a person charged 
 with a specific offence, in an information and summons to answer 
 that offence, should at the hearing and in his absence be convicted 
 of an entirely different offence and practically acquitted of the 
 offence which he was summoned to answer, that no Act should be 
 construed so as to bring about such a result unless the provisions 
 were plain and unambiguous. ... I think the case which the
 
 NON-APPEARANCE OF ACCUSED ADJOURNMENTS. 255 
 
 magistrate is authorized to go on and determine ex parte is the 
 one which the party has been summoned to answer, not a new one 
 atlogether." BARKER, J., at p. 85, in Ex parte Doherty, (1895) 1 
 O. C. C. 84; and see R. v. Lyons, (1905) 10 0. C. C. 130, and R. 
 v. Hornbrook, 38 N. B. E. 358, 4 E. L. E. 508. 
 
 As to amendment of the information at the hearing, the de- 
 fendant being present and not objecting and proceeding with his 
 defence, see R. v. Bennett, 3 0. E. 45. 
 
 Where there is a variance between the information and the 
 evidence in support, and the defendant is thereby deceived, or mis- 
 led, the justice may adjourn the hearing to some future day so as 
 to give the defendant an opportunity of meeting the new case that 
 has been made out by the prosecutor. See sec. 724 (4), post. 
 
 The hearing may be adjourned from time to time under this 
 section, although the accused be not present, provided the adjourn- 
 ments are made in the presence and hearing of his solicitor or 
 agent. Proctor v. Parker, (1899) 3 C. C. C. 374, 12 M. E. 528. 
 
 Parties who do not see fit to appear must ascertain the dates 
 to which proceedings are adjourned, or disregard them at their 
 peril. KILLAM, J., ibid. See R. v. Kennedy, (1889) 17 0. R. 
 159. 
 
 An attorney authorized only to appear and defend cannot 
 plead guilty for the accused so as to authorize a conviction without 
 evidence when the defendant is absent. Ex parte Erickson, 31 N. 
 
 B. E, 296. 
 
 Where the defendant has failed to appear the information may 
 be amended so as to correct the date of the offence, but not to 
 charge a different offence. Ex parte Tompkins, (1906) 12 C. C. 
 
 C. 552. 
 
 NON-APPEARANCE or PROSECUTOR. 
 
 719. If, upon the day and at the place so appointed, the defendant 
 appears voluntarily in obedience to the summons in that behalf served 
 upon him, or is brought before the justice by virtue of a warrant, then, if 
 the complainant or informant, having had due notice, does not appear by 
 himself, his counsel, solicitor, or agent, lihe justice shall dismiss the com- 
 plaint or information unless he thinks proper to adjourn the hearing of 
 the same until some other day upon such terms as he thinks fit. 
 
 720. If both parties appear, either personally or by their respective 
 counsel, solicitors or agents, before the justice who is to hear and deter- 
 mine the complaint or information, such justice shall proceed to hear and 
 determine the same. 
 
 If, after the issue of the summons and before the day appointed 
 for the hearing by the justice, the parties compromise the matter
 
 256 CORPORATIONS ARRAIGNMENT OF ACCUSED. 
 
 and inform the justice of this fact, the justice still has jurisdiction 
 to convict and may, after taking evidence in the case, legally 
 adjudicate thereon notwithstanding the compromise. R. v. JJ. 
 Wiltshire, 8 L. T. 242 ; E. v. Truelove, U Cox C. 0. 408. 
 
 A defendant not present at the time, but represented by attor- 
 ney, may be convicted of a third offence under " The Oanada 
 Temperance Act." Ex parte Grieves, 29 N. B. E. 543. 
 
 CORPORATIONS. 
 
 72OA. When the defendant is a corporation, the summons may be 
 served on the mayor or chief officer of such corporation, or upon the clerk 
 or secretary or the like officer thereof, and may be in the same form as 
 if the defendant were a natural person. 
 
 2, The corporation in such case shall appear by attorney, and, if it 
 does not appear, the justice may proceed as in other cases. 
 
 This section was added in 1909. See R. v. Toronto Railway 
 Co., (1898) 2 C. C. C. 471. 
 
 ARRAIGNMENT or ACCUSED. 
 
 721. If the defendant is personally present at the hearing, the sub- 
 stance of the information or complaint shall be stated to him, and he shall 
 be asked if he has any cause to show why he should not be convicted, or 
 why an order should not be made against him, as the case may be. 
 
 2. If the defendant thereupon admits the truth of the information or 
 complaint, and shows no sufficient cause why he should not be convicted, 
 or why an order should not be made against him, as the case may be, the 
 justice present at the hearing shall convict him or make an order against 
 him accordingly. 
 
 3. If the defendant does not admit the truth of the information or 
 complaint, the justice shall proceed to inquire into the charge and for the 
 purposes of such inquiry shall take the evidence of witnesses, both for the 
 complainant and accused in the manner provided by Part XIV. in the case 
 of a preliminary inquiry. 
 
 4.^ The prosecutor or complainant is not entitled to give evidence in 
 reply if the defendant has not adduced any evidence other than as to his 
 general character. 
 
 5. In a hearing under this Part, the witnesses need not sign their 
 depositions. 
 
 It is only where the defendant is personally present that the 
 substance of the information is read or stated to him. If the de- 
 fendant admits the truth of the information, in other words 
 " pleads guilty " to the charge, and shews no sufficient cause why 
 he should not be convicted, or an order made against him, then 
 the justice shall convict him or make an order against him and 
 impose the penalty. The justice is required to make a minute or 
 memorandum of any conviction or order against a defendant. See 
 see. 727, post.
 
 PROCEEDINGS AT TRIAL ADJOURNMENTS. 257 
 
 A summary conviction made without evidence in the absence 
 of the accused on a plea of guilty entered by a solicitor for the 
 Accused, but without proof of the solicitor's authority, is bad for 
 want of jurisdiction. R. v. Broadfoot, 17 C. 0. C. 71. Otherwise, 
 however, if the solicitor's authority is proved. R. v. McDonald, 
 21 C. C. 0. 229. 
 
 If the accused appears personally, or by counsel, and he de- 
 sires to offer any preliminary objection to the information or 
 summons, all such objections should be taken and the ruling of 
 the justice thereon noted, before the defendant pleads, otherwise 
 the objection will be waived. 
 
 The defendant may appear and ask time in order that he may 
 consult his solicitor before pleading, and it is usual to grant such 
 a request if made bona fide, and to grant an adjournment for a 
 reasonable time. 
 
 If the defendant appears and pleads not guilty and asks for 
 an adjournment in order to summon witnesses and prepare for his 
 defence, an adjournment should be made for such time as seems 
 reasonable in the ease. 
 
 No adjournments shall be for more than eight days. Adjourn- 
 ments are in the discretion of the justice. They must be made to 
 a certain time and place appointed and stated in the presence of 
 the parties, or their counsel then present. See sec. 722. 
 
 A refusal to adjourn the case for the purpose of the defendant 
 obtaining legal assistance does not go to the jurisdiction of the 
 justice so as to enable the defendant to quash a conviction on 
 certiorari for this cause. R. v. Biggins, 5 L. T. 605; and see Ex 
 parte Hopwood, (1850) 15 Q'. B. 121; R. v. JJ. Cambridgeshire, 
 44 J. P. 168; R. v. Irwing, (1908) 14 C. C 1 . 0. 489, and cases 
 post, under sec. 722. 
 
 If the charge is not admitted, and the defendant pleads not 
 guilty and the trial is proceeded with, the inquiry is to proceed 
 " in the matter provided by Part XIV. in the case of a prelimin- 
 ary inquiry," sub-sec. 3 of sec. 721. 
 
 Upon reading sec. 682 supra, which contains the provisions 
 governing the taking of the evidence of witnesses in the case of a 
 preliminary inqjuir} r , and bearing in mind the provisions of sees. 
 718, 720, and sub-sec. 5 of sec. 721, being the section now under 
 consideration, it will be noticed that it will be both impossible and 
 unnecessary in all cases to comply with the provisions of sec. 682. 
 
 C.C.P. 17
 
 258 MANNER OF TAKING EVIDENCE. 
 
 For example, by 682 (2), the evidence of the said witnesses 
 shall be given upon oath " and in the presence of the accused." 
 
 By sec. 718 the justice may proceed ex parte in the absence of 
 the accused when he has been served with the summons a reason- 
 able time before the hearing. The justice can thereupon proceed 
 to take the evidence of the witnesses for the complainant in the 
 absence of the accused, which could not be done at a preliminary 
 hearing. See sub-sec. 2 of sec. 682. 
 
 Again, by sec. 720, the justice may proceed to hear and deter- 
 mine the complaint or information if both parties appear 'either 
 personally or by their respective counsel, solicitors or agents so 
 that the accused may be absent from the hearing and the justice 
 may proceed to take the evidence in his absence; and see sec. 722 
 (2) as to hearing on adjournment where parties do not appear. 
 
 And, by sub-sec, 5 of sec. 721, in a hearing under this part the 
 witnesses need not sign their depositions. "Whereas by sec. 682 
 (4) the depositions at a preliminary hearing must be read over 
 and signed by both the witness and the justice in the presence of 
 the accused. 
 
 What presumably is meant, and at all events what is usually 
 done, is to take the evidence of the witnesses " as nearly as may 
 be" in the manner provided by sec. 682. The following rules 
 should be strictly followed: 
 
 (1) Every witness at any hearing shall be examined upon oath 
 or affirmation. (Sec. 716). 
 
 (2) The evidence of each witness shall be taken down in writ- 
 ing in the form of a deposition, which may be in form 19 
 or to the like effect. Sec. 632 (3). 
 
 (3) Although sec. 721 (5) says that the depositions under 
 this part need not be signed, it is always a wise precaution 
 to read over the deposition to each witness and get him, 
 or her, to sign it. 
 
 (4) The signature of the justice may be either at the end of 
 the deposition of each witness, or at the end of all the de- 
 positions, in such form as to shew that the signature is 
 meant to authenticate each separate deposition. Sec. 
 682 (5). 
 
 (5) The depositions may be taken in shorthand, as provided 
 by sec. 683 of the Code. In this event they need not be 
 either read over to the witnesses, or signed by them. It is
 
 MODE OF TAKING EVIDENCE OF WITNESSES. 259 
 
 sufficient if the transcript is signed by the justice before 
 whom they are taken and verified by the affidavit of the 
 stenographer. See the last chapter. 
 
 The omission to read over to the witnesses their respective de- 
 positions does not go to the jurisdiction of the magistrate. Ex 
 parte Steeves, (1908) 15 C. C. C. 160, and see Ex parte Gallagher, 
 14 C. C. C. 38; Ex parte Doherty, 3 C. G. d 310; R. v. -Ride- 
 hough, 12 C. 0. C. 360. 
 
 Neither does the omission of the justice to sign the depositions 
 of the witnesses. Ex parte Budd, 17 Cl C. O. 235. 
 
 The evidence of the witnesses must be taken in writing, and, 
 this not having been done, the conviction was held bad. Denault 
 v. Robida, (1894) 8 C. C. C. 501. 
 
 " The conviction is clearly bad. There is nothing to shew on 
 what evidence the prisoner was convicted, or even to shew how he 
 pleaded, there being no record kept of the proceedings. It is new 
 to me to learn that the validity, or the scope, of a conviction is to 
 depend on the justices' memory, which may not be called into 
 action for months, or even years after the event. If there is no 
 record, how can there be any effective remedy or appeal ?" Hux- 
 TER, C.J., at p. 314, in R. v" McGregor, (1905) 10 C. C'. C. 313, 
 and see Re LajCroix, (1907) 12 0. 0. C. 297. 
 
 The stenographer who took the evidence was not sworn to take 
 the evidence before he took down the same. 
 
 " The evidence, not being taken as provided by law, is not evi- 
 dence at all, and therefore there is no evidence taken that can be 
 read. I think this is a matter going to the jurisdiction. The 
 taking down of the evidence, as has been said in some of the cases 
 which I have cited, is a matter both for the protection of the 
 magistrate and the protection of the public, and there can be no 
 protection in the true sense of the word, either for the magistrate, 
 or for the public, unless the reporter takes down the evidence un- 
 der the solemnity of his oath. I therefore think that this is a 
 matter which affects the jurisdiction and is such an error as will 
 be sufficient to quash the conviction." CRAIG, J., at pp. 103. 104, 
 in R. v. L'Heureux, (1908) 14 C. C. 0. 100. See also R. v. John- 
 son, 19 C. C. C. 203. 
 
 A person accused and convicted of a charge of vagrancy con- 
 sented that the depositions need not be taken down in writing, and 
 such consent was noted in the record of the proceedings. Held, on
 
 260 MODE OF TAKING EVIDENCE OF WITNESSES. 
 
 certiorari, " that when the person of the accused and the subject 
 matter of the charge are within the cognizance of the tribunal, a 
 consent, which affects procedure only, will, in the absence of any 
 special circumstances forbidding it, establish a legal waiver . . . 
 1 conclude the consent given by Janneau was effective in law." 
 Conviction sustained. DAVIDSON, J., at p. 362, in R. v. Janneau, 
 (1907) 12 C. 0. C. 360, and see R. v. Warilow, (1908) 14 0. C. 
 C. 117, and R. v. Began, (1908) 14 C. C. C. 148. 
 
 The plea of guilty, whether made before or after whatever 
 examination there may have been of the informant, dominates the 
 matter. The conviction is in terms based upon it alone, and. 
 where the prisoner had pleaded guilty to a charge of vagrancy and 
 was sentenced to six months imprisonment and moved to quash 
 the conviction because the evidence was not taken down in writing, 
 the motion was refused and the conviction sustained. R. v. Goulet, 
 (1907) 12 C. C. C. 365. 
 
 The magistrate who convicts must have heard the evidence 
 and not allowed it to be taken in his absence by his clerk, or any 
 other person. R. v. Inhabitants of Darton, 12 A. & E. 78 ; R. v. 
 Watts, 33 L. J. M. C. 63. 
 
 If one of the justices who subsequently takes part in the con- 
 viction is not present at the hearing of the summons until a por- 
 tion of the evidence has been given, the witnesses should be re- 
 sworn and should again give their evidence, and it is not sufficient 
 that the evidence already given should be read over to such jus- 
 tice. The parties, however, may waive such an irregularity. R. 
 v. Jeffreys, 22 L. T. 786. 
 
 On a summary conviction trial, when all the evidence offered 
 by the prosecution has been heard and the case closed, the prose- 
 cutor cannot, upon objection taken that material proof is lacking, 
 withdraw the charge and lay a new information charging the 
 identical offence. If such is done, the defendant is entitled to 
 plead autrefois acquit. R. v. Chew Deb, 21 C. C. C. 20, disap- 
 proving Ex parte Wyman, 5 C. C. C. 58. 
 
 ADJOURNMENT. 
 
 722. Before or during the hearing of any information or complaint 
 the justice may, in his discretion, adjourn the hearing of the same to a 
 certain time or place to be then appointed and stated in the presence and 
 hearing of the party or parties, or of their respective counsel, solicitors or 
 agents then present, but no such adjournment shall be for more than eight 
 days. 
 
 2. If. at the time and place to which the hearing or further hearing 
 is adjourned, either or both of the parties do not appear, personally or by
 
 PEOCEDURE RELATING TO ADJOURNMENTS. 261 
 
 his or their counsel, solicitors or agents respectively, before the justice or 
 such other justices as shall then be there, the justice who is then there 
 may proceed to the hearing or further hearing as if the party or parties 
 were present. 
 
 3. If the prosecutor or complainant does not appear, the justice may 
 dismiss the information, with or without costs, as to him seems fit. 
 
 4. Whenever any justice adjourns the hearing of any case, he may 
 suffer the defendant to go at large or may commit him to the common gaol 
 or other prison within the territorial division for which such justice is 
 then acting, or to such other safe custody as such justice thinks fit, or 
 may discharge the defendant upon his recognizance, with or without sureties, 
 at the discretion of such justice, conditioned for his appearance at the 
 time and place to which such hearing or further hearing is adjourned. 
 
 5. Whenever any defendant who is discharged upon recognizance, or 
 allowed to go at large, does not appear at the time mentioned in the 
 recognizance or to which the hearing or further hearing is adjourned, the 
 justice may issue his warrant for his apprehension. 
 
 The justice should be careful to record, or note, all adjourn- 
 ments ; this is conveniently done by endorsing a memo, on the back 
 of the information. It can be in this form, " Remanded till 
 Friday the 10th day of July, A.D. 1910, at 10 a.m." (Sgd.) 
 John Brown, J.P. 
 
 Be sure to record the day of the week and date and hour, and 
 to sign the minute. If adjournments take place during the trial, 
 these can be noted on the face of the proceedings, at the conclu- 
 sion of each day's proceedings. 
 
 The adjournment may be either before or during the hearing, 
 and, (a) it is in the discretion of the justice; (b) it must be to a 
 certain time or place; (c) to be then appointed and stated in the 
 presence and hearing of the party or parties or of their respective 
 counsel, solicitors or agents, then present; (d) but no such ad- 
 journment shall be for more than eight days. The eight days 
 should be computed from and exclusive of the day of the ad- 
 journment. R. v. Collins, 14 0. R. 613. 
 
 If the accused asks for an adjournment beyond the eight days 
 and attends upon the adjourned hearing and takes his chances of 
 a dismissal on the evidence, he is estopped from afterwards urg- 
 ing a want of jurisdiction because of the irregular adjournment. 
 R. v. Heffernan, 13 0. R. 616, disapproving R. v. French, 13 0. 
 R. 80. See also R. v. Miller, 15 C. C. C. S7. The result will be 
 the same if the accused consents to the longer adjournment. R. 
 v. Eazen, 20 A. R. 633. 
 
 When the hearing is adjourned the justice may: (1) suffer the 
 defendant to go at large; (2) or commit him to prison; (3) or 
 discharge the defendant upon his recognizance with, or without, 
 sureties conditioned for his appearance at the time and place to 
 which the hearing is adjourned.
 
 262 ADJOURNMENT IN DISCRETION OF JUSTICE. 
 
 As to the magistrate's discretion, see R. v. Irwing, (1908) 14 
 C. C. C.489. R. v. Pfister, 19 C. C. C. 92; R. v. Bouchard, 20 C. 
 C. C. 95; Ex parte Monahan, 17 Cl C. C. 53, and other cases cited 
 at page 255. 
 
 This discretionary power of adjournment should be exercised 
 according to the rules of reason, law and justice, and not by the 
 private opinion, or humour of the justice. See R. v. Bouchard, 
 20 C. C. C. 95. 
 
 In most cases where a justice of the peace is imperatively called 
 upon to act, and generally where a statute directs the doing of a 
 thing for the sake of justice, or the public good, the word may is 
 the same as the word shall, and it is imperative on the justice to 
 proceed. R. v. Barlow, 2 Salk. 609. But see, contra, R. v. Tlie 
 Bailiffs of Eye, 4 B. & Aid. 271. 
 
 If the accused does not appear personally, or by counsel, at the 
 time and place fixed at the adjournment, the justice may proceed 
 to the hearing, or further hearing, as if the accused were present. 
 
 And if the prosecutor or complainant does not appear the jus- 
 tice may dismiss the information with or without costs as to him 
 seems meet. 
 
 The adjournment must not be sine die, or without day, but to 
 a day certain and named in the presence of the parties, or their 
 solicitor, so as to enable them to be present. Even when the de- 
 fendant fails to appear to the summons, an adjournment of the 
 hearing must be to a time and place appointed and publicly stated 
 at the time of the adjournment. R. v. Smith, 16 C. C. C. 425. 
 
 See also Donohue v. Recorders' Court, 18 C. C. C. 182, and 
 Ex p. Giberson, 18 0. C. C. 355. And this rule applies where an 
 adjournment is had for the purpose of delivering judgment. R. 
 v. Quinn, (1897) 2 C. 0. C., 153, and see R. v. Morse, (1890) 22 
 N. S. R. 298, although, in that case, the time fixed need not be 
 within the eight days. R. v. Hall, 12 P. R. 142 ; R. v. Alexander, 
 17 P. R. 458; Plante v. Cliche, 17 C. 0. C. 43, 20 C. C. O. 186. 
 
 Where the defendant appeared before the magistrate and 
 pleaded not guilty to a charge of selling liquor without a license 
 and asked for an adjournment which was refused: Held, that 
 the conviction should be quashed on the ground that, when the 
 defendant denied that he was guilty but required reasonable time 
 to produce other witnesses who could probably be speedily pro- 
 coired, reasonable time should be allowed him. A defendant should 
 be duly summoned and fully heard. R. v. Lorenzo, (1909) 14 0.
 
 ADJOURNMENTS OP HEARING. 263 
 
 W. R. 1038, 16 C. C. C. 19; but see R. v. Major, (1909) 14 0. 
 W. R. 1111. E. v. WilJcins, 17 O. C. C. 20, and Ex parte Giber- 
 son, supra. 
 
 On a motion to quash a conviction for selling liquor without a 
 license on the ground that the magistrate had refused the defend- 
 ant an adjournment, it was held that the evidence shewed that the 
 defendant had been given a fair trial and that any further delay 
 would not have assisted the defendant. Motion refused. R. v. 
 Lorenzo, supra, distinguished. R. v. Luigi, (1909) 14 0. W. R. 
 1041, 16 C. 0. C. 25. See also Ex parte Le Bel, 16 C. C. C. 363. 
 
 Where an adjournment is made at the close of the hearing for 
 the purpose of delivering judgment, the justice is not confined to 
 the limit of time mentioned in sec. 722, but may adjourn for a 
 longer period, but such adjournment must be to a day certain and 
 fixed, and in the presence of the parties, so that they may be pre- 
 sent wnen tne decision is given, otherwise the accused might be 
 deprived of his right of appeal. See R. v. Hall. 12 P. E. 142 : R. 
 v. Alexander, 1'lf 0. R. 458, and Plante v. Cliche, supra. 
 
 But, if counsel for the complainant and for the accused agree 
 that judgment may be reserved without fixing a date for same, 
 other than that the decision shall be given within a week and shall 
 be notified to the respective counsel, and the magistrate acquiesces 
 in, and conforms to, such arrangement, he does not thereby lose 
 jurisdiction, and a conviction made within the week should not be 
 set aside. R. v. McKenzie, 17 C. C. C. 372. 
 
 As to waiver of right to adjournment on amendment of the 
 information, see R. v. Clarice, (1906) 12 C. C. C. 485. 
 
 The accused was summoned for the next day, when the charge 
 was amended as to the date of the offence (for selling liquor with- 
 out a license). Held, that he was entitled to an adjournment 
 without being put on terms of paying the costs of the day and 
 that the refusal of the adjournment was a denial of his right to 
 make full answer and defence (Code, sec. 715). R. v. Farrell, 
 12 0. C. C. 524. 
 
 If the accused appear at the time and place mentioned in the 
 summons, and the justices shall not attend, he is not to go away, 
 but must wait during the remaining part of the day, for many 
 things may happen to hinder the justices' immediate attention. 
 1 Burns' Justice, p. 1131, and see R. v. Wipper, (1901) 5 C. C. C. 
 17.
 
 264 ADJOURNMENTS BAIL ON REMAND. 
 
 In other words, the accused should attend at the time and place 
 mentioned, and, if the Court is sitting, wait till his case is called. 
 Or, if the Court is not sitting, he should make inquiry and as<*er- 
 tain when the justice will sit, and wait till the justice arrives. 
 In the absence of the magistrate, the clerk of the Court has no 
 power to adjourn the hearing of a complaint. Pare v. Recorder 
 of Montreal, (1905) 10 0. C. 0. 295. 
 
 After hearing all the evidence in support of the charge, the 
 defendant should be called upon for his defence, and the magis- 
 trate is bound to hear any relevant evidence tendered by him. R. 
 V. Holland, 37 U. C. R. 214; R. v. Sproule, 14 0. R. 375; R. 
 v. Nunn, 10 P. R. 395; R. v. Meyer, 11 P. R. 477. 
 
 Besides protesting against and commenting on the validity, or 
 effect, of the evidence tendered against him, the accused may de- 
 fend himself by proving that he is within some proviso, or excep- 
 tion, which excuses or justifies the fact charged, or that the act 
 complained of was done under an asserted authority, or pursuant 
 to a bona fide claim of right of property, for, where the title to 
 property comes in question, the exercise of a summary jurisdic- 
 tion by justices of the peace is generally ousted. R. v. Burnaby, 
 1 Salk. 181; and see sec. 709, supra. 
 
 BAIL ON REMAND. 
 
 If the magistrate refuses to grant bail on adjourning the hear- 
 ing, a Judge of a Superior Court may do so. R. v. Vincent, 22 
 C. C. C. 98. 
 
 The consent of the accused to an adjournment for a period 
 exceeding eight days was a waiver of the irregularity and the 
 sureties on the bail bond could not complain or take advantage 
 of it, as it had been expressly given for the longer adjournment. 
 Re Burns' Bail, 17 C. C. C. 292. 
 
 EXCLUDING WITNESSES. 
 
 In many cases, it may be proper to examine witnesses apart 
 from the others, and for that purpose to require witnesses to with- 
 draw during the examination. 
 
 On the application of either party, the Oourt may direct that 
 all the witnesses but the one under examination shall leave the 
 Court. And this right may be exercised by the justice at any 
 time, but it is most usual to be asked for and exercised at the
 
 DEFECTS AND OBJECTIONS TO INFORMATIONS, &C. 265 
 
 commencement of the hearing. See R. v. Murphy, 8 C. & P. 297. 
 and Southey v. Nash, 7 C. & P. 632, and p. 206, supra. 
 
 DEFECTS AND OBJECTIONS. 
 
 As to this subject, see sec. 723 of the Code, printed at p. 133, 
 supra, and the remarks and cases following, also sees. 669 and 670. 
 as to irregularities and variations, printed at p. 185, supra, and 
 the cases there cited. 
 
 Although, by sub-sec. 3 of sec. 723, the description of any 
 offence in the words of the Act, or of any order, by law, regula- 
 tions or other document creating the offence, or any similar words, 
 shall be sufficient in law: Smith v. Moody, [1893] 1 K. B. 56; 
 yet, when a statute, in describing an offence, makes use of general 
 terms which will include a variety of circumstances, it i& not 
 enough that the information should follow the very words of the 
 statute, but it is necessary to state what particular act prohibited 
 has been committed, or what particular act enjoined has been 
 omitted. R. v. Beckwitli, 7 C. C. O. 450, and see also Smith v. 
 Mo^dy, supra. 
 
 Variance or Defect in Information, Etc. 
 
 724. No objection shall be allowed to any information, complaint, 
 summons or warrant for any alleged defect therein, in substance or in 
 form, or for any variance between such information, complaint, summons 
 or warrant and the evidence adduced on the part of the informant or 
 complainant at the hearing of such information or complaint. 
 
 2. Any variance between the information for any offence or act punish- 
 able on summary conviction and the evidence adduced in support thereof 
 as to the time at which such offence or act is alleged to^have been com- 
 mitted, shall not be deemed material if it is proved that such information 
 was, in fact, laid within the time limited by law for laying the same. 
 
 3. Any variance between the information and the evidence adduced 
 in support thereof, as to the place in which the offence or act is alleged 
 to have been committed, shall not be deemed material if the offence or act 
 is proved to have been committed within the jurisdiction of the justice by 
 whom the information is heard and determined. 
 
 4. If any such variance or any other variance between the informa- 
 tion, complaint, summons or warrant, and the evidence adduced in support 
 thereof, appears to the justice present and acting at the hearing to be such 
 that the defendant has been thereby deceived or misled, the justice may, 
 upon such terms as he thinks fit, adjourn the hearing of the case to some 
 future day. 
 
 This provision does not extend to a case where the informa- 
 tion has been laid, and the party summoned, for an offence, and 
 the justice has convicted him of another and different offence and 
 under a different Act of Parliament. Martin v. Pridgeon, 28 L. 
 J. M. 0. 179: R. v. BricUiall, 33 L. J. M. C. 156.
 
 266 VARIANCES BETWEEN INFORMATION AND EVIDENCE. 
 
 But, where an information was laid under 4 Geo. IV, ch. 34, 
 sec. 3, against the defendant for unlawfully absenting himself 
 from the service, and alleged a contract " with B. and others," 
 and at the hearing it appeared that " B. and others " constituted 
 an incorporated company, this was held to be a variance cured 
 by a similar section, 11 & 12 Vic., ch. 43, sec. 1; Whittle v. Frank-- 
 land, 31 L. J. M. C. 81, 2 B. & S. 49. 
 
 The misstatement or omission of any material averment in the 
 information is not cured by any statement in the evidence speci- 
 fied in the conviction, for the defendant can be convicted only of 
 the charge in the information, and that must be sufficient to sup- 
 port the conviction, the evidence being held to prove only and not 
 to supply the defects in the information. R. v. Wheatman, 1 
 Doug. 345. 
 
 Where a clerical error is manifest on the face of the document, 
 it will be read as it ought to have stood. R. v. Williams, 21 L. J. 
 M. C. 150. 
 
 If, on the hearing, it is objected that the information discloses 
 two offences, the prosecutor may be required to elect on which 
 charge he will proceed. Rodgers v. Richards, [1892] 1 Q. B. 
 555, 66 L. T. 261, and see Bartholomew v. Wiseman, 56 J. P. 
 455. 
 
 An information on its face purported to be the information of 
 B., whereas it was signed and sworn to by McM. At the hearing, 
 the magistrate erased B.'s name and wrote over it the name of 
 McM., who had signed and sworn to the information. The de- 
 fendant's counsel raised the objection that the information should 
 be resworn; this was not done. The objection, however, was noted 
 by the magistrate. The defendant pleaded not guilty, the trial 
 proceeded and he was convicted. On an appeal from a decision 
 granting a writ of certiorari to remove the conviction, it was held 
 that the information was bad ; it should have been resworn. Held, 
 further, that, having stated his objection, and having caused the 
 same to be noted, there was nothing further for the defendant to 
 do, he being under arrest, and by proceeding with the trial and 
 cross-examining witnesses he did not thereby waive the objection 
 to the information not being re-sworn. R. v. McNutt, (1896) 3 
 C. C. C. 184. See further the chapter on information and com- 
 plaint and cases there cited, and notes to sec. 710, supra. 
 
 A warrant of commitment under a summary conviction must 
 shew on its face that the justice who issued it had authority at 
 the place where the offence occurred, and an objection such as this
 
 CERTAIN DEFECTS NOT TO VITIATE PROCEEDINGS. 267 
 
 is not cured by sec. 846 (now 723). R. v. Grow, (1906) 11 C. C. 
 C. 81. 
 
 CERTAIN OTHER DEFECTS NOT TO VITIATE PROCEEDINGS. 
 
 725. No information, summons, conviction, order or other proceeding 
 shall be held to charge two offences, or shall be held to be uncertain on 
 account of its stating the offence to have been committed in different modes, 
 or in respect of one or other of several articles, either conjunctively or dis- 
 junctively, for example, in charging an offence, under section 533, it may 
 be alleged that " the defendant unlawfully did cut, break, root up and 
 otherwise destroy and damage a tree, sapling or shrub " ; and it shall not 
 be necessary to define more particularly the nature of 'the act done, or to 
 state whether such act was done in respect of a tree, or a sapling, or a 
 shrub. 
 
 See R. v. White, (1901) 4 0. 0. C. 430; R. v. McDonald, 
 (1898) 6 C. O. C. 1; R. v. Brine, (1904) 8 0. 0. C. 54; R. v. 
 Brouse, 21 C. C. C 1 . 17. 
 
 CONVICTION OR ORDER REMOVED BY CERTIORARI NOT TO BE HELD 
 INVALID FOR IRREGULARITY. 
 
 It should be useful to print here the provisions of sec. 1124 
 of the Code on this subject as follows : 
 
 1124. No conviction or order made by any justice, and no warrant 
 for enforcing the same, shall, on being removed by certiorari, be held invalid 
 for any irregularity, informality or insufficiency therein, if the Court or 
 Judge before which or whom the question is raised, upon perusal of the 
 depositions, is satisfied that an offence of the nature described in the 
 conviction, order or warrant, has been committed, over which such Justice 
 has jurisdiction, and that the punishment imposed is not in excess of 
 that which might lawfully have been imposed for the said offence : Pro- 
 vided that the Court or Judge, when so satisfied, shall, even if the 
 punishment imposed or the order made is in excess of that which might 
 lawfully have been imposed or made, have the like powers in all respects 
 to deal with the case as seems just as are by section seven hundred and 
 fifty-four conferred upon the Court to which an appeal is taken under 
 the provisions of section seven hundred and forty-nine. 
 
 2. Any statement which, under this Act or otherwise, would be 
 sufficient if contained in a conviction, shall also be sufficient if contained 
 in an information, summons, order or warrant. 
 
 ADJUDICATION. 
 
 726. The justice, having heard what each party has to say, and the 
 witnesses and evidence adduced, shall consider the whole matter, and, 
 unless otherwise provided, determine the same and convict or make an 
 order against the defendant, or dismiss the information or complaint, as 
 the case may be. 
 
 The judgment of the justice should be confined to the subject* 
 matter of the complaint laid before him. R. v. Soper, 3 B. & C. 
 
 857.
 
 268 ADJUDICATION UPON THE EVIDENCE; 
 
 The evidence must support the charge as laid in the informa- 
 tion, and the justice cannot be required to hear evidence which 
 ought not to affect his decision in the matter before him. R. \. 
 Minshull, 1 N. & M. 277. 
 
 If an information is laid for sureties to keep the peace, the 
 j ustice has no jurisdiction to convict the defendant of an assault. 
 as"well as to order him to find sureties to keep the peace upon evi- 
 dence of an assault, as well as threats, when tne informant/prp- 
 testsngainstthe justices dealing with the case as one of assault. 
 H7\\IJeny, 20 L. J. M. C. 189. 
 
 It is otherwise if the information is laid for assault or other 
 offence and the defendant is convicted, as in that event the justice 
 may, in lieu, or in addition to any other sentence, require the 
 defendant to give security, or enter into hie own recognizance to 
 keep the peace for twelve months. See sec. 748, post. 
 
 The degree of credit due to the evidence on either side is en- 
 tirely for his consideration, and a justice of the peace in summary 
 proceedings is substituted for a jury, so far as relates to the con- 
 viction, that is, to the finding of the party guilty, or not guilty. 
 He should judge, therefore, of the guilt or innocence of the de- 
 fendant from the evidence in the same manner as if he were upon 
 a jury; if the evidence be such as to leave no reasonable doubt 
 upon his mind of the guilt of the defendant, he should convict 
 him, if otherwise, he should acquit him. 1 Burns' Justice, p. 
 1142; E. v. Reason, 6 T. E. 326; R. v. Smith, 8 T. B, 590. 
 
 If any reasonable doubt exists in the mind of the magistrate, 
 the party charged is entitled to the benefit of that doubt. Such 
 cases it is to be recollected differ very materially indeed from 
 those where mere civil rights are concerned, and where the mere 
 preponderance of evidence may be sufficient to decide the question. 
 8 Stark. Ev. 4U. 
 
 It is sufficient to authorize a conviction that there is such evi- 
 dence before the justice as might in an action, or on an indict- 
 ment, be left to a jury, and the Court of Queen's Bench when the 
 conviction is brought before it will not examine further to see 
 whether the conclusion drawn by the justice be, or be not, the 
 inevitable conclusion from the evidence. R. v. Davis, 6 T. E. 178. 
 
 And if the justices think fit to dismiss the charge, although 
 there appear prima facie ground for a conviction, their acquittal 
 cannot be questioned, since no other Court can judge of the credit 
 due to witnesses which it did not hear examined. R. v. Reason, 
 6 T. B. 326; R. v. Eidgway, 5 B. & Aid. 527.
 
 ADJUDICATION AND CONVICTION. 269 
 
 The magistrate has no right to act upon any personal know- 
 ledge he may be supposed to have he must act upon evidence 
 adduced before him. Taylor, O.J., at p. 202, in R. v. Herrell, 
 (1898) 12 M. K. 198. 
 
 As to the suggested personal knowledge of the magistrate, that 
 could not be acted on any more than the magistrate, seeing Herrell 
 make a sale of intoxicating liquor, could turn around and convict 
 him of doing so without taking evidence. There should be sworn 
 evidence of a witness who could be cross-examined and whose de- 
 positions could be taken down in writing. Killam, J., p. 210, 
 ibid. 
 
 When the justice dismisses the case, he may, when required, 
 make an order of dismissal in form 37, and shall then give the 
 defendant a certificate of dismissal in form 38. See sec. 730, post. 
 
 Two justices holding summary proceedings must act together 
 throughout. After adjournment, the justices met again upon a 
 conviction, and drew up what they intended to be a formal con- 
 viction and signed it; but, when the day which they had appointed 
 for delivering judgment came, only one of the justices attended 
 and, producing the paper they both had signed, he read it as the 
 conviction of both magistrates. " I do not think that is acting 
 as required by the statute together to the end." Gregory, J., at 
 p. 190, in Ex parte McCorquindale, 15 C. C. 0. 187. 
 
 CONVICTION. 
 
 727. If the justice convicts or makes an order against the defendant, 
 a minute or memorandum thereof may then be made, for which no fee 
 shall be paid, and the conviction or order, in such case, shall afterwards 
 be drawn up by the justice on parchment or on paper, under his hand 
 and seal, in such one of the forms of conviction or of orders from 31 to 
 36 inclusive as is applicable to the case or to the like effect. 
 
 MINUTE OF CONVICTION. 
 
 Notice that the minute, or memorandum, " may " be made, 
 so that it is not imperative that it should be made. When there 
 is a complete minute made, the formal conviction should conform 
 to it: Ex parte Carmicliael, 8 C. C. C. 19; R. v. Kirwin, 20 C. 
 C. C. 181. But, when there is no minute, the conviction itself, 
 if made at the time, is a sufficient compliance with sec. 727: Ex 
 parte Flanagan, 2 C. C. C. 513 ; Ex parte Van Buskirk, 13 C. C. C. 
 234; and the entry by the magistrate of the words "3 months, 
 100 or 3 months" on the back of the information is not con- 
 clusive to shew that he did not award hard labour. R. v. Gratton, 
 17 C. C. C. 324. See also R. v. Dagenais, 18 C. C. C. 287.
 
 270 MINUTE OF CONVICTION'. 
 
 The memo, can be in the following form: 
 
 "Judgment. Fined ($10), and ($2.35) costs of the Court, or 
 
 in default of payment days (or months) imprisonment 
 
 in the gaol at H. L." (Hard labour). 
 
 " John Brown, 
 
 " J.P." 
 
 If the penalty is to be recovered by distress, say " or in default, 
 distress." 
 
 All that is required is a minute or memorandum signed by the 
 justice, which will contain sufficient information upon which to 
 base the order, or conviction, afterwards drawn up, and to indi- 
 cate the true adjudication of the justice. 
 
 It was held that, where in the minute of adjudication the costs 
 were fixed at $5.20, and the conviction reqiTired the defendant to 
 pay $5.27 costs, the conviction was bad. R. v. Walsh, 2 0. R. 206. 
 
 Held that, inasmuch as the conviction and warrant of commit- 
 ment varied from the minute of adjudication in that they stated 
 that the defendant should be kept at hard labour, the minute not 
 containing such, the variance was fatal and the conviction quashed. 
 Ex parte Carmichael, (1903) 8 C. C. C. 19. See also R. v. 
 Kirwin, supra. These cases are distinguished in R. v. Gratton, 
 supra. 
 
 The minute of conviction should state the adjudication of the 
 justices both as to the amount of the fine and the mode of enforc- 
 ing it, whether by distress, or imprisonment, so as to be a com- 
 plete judgment in substance. R. v. Perley, (1885) 25 N. B. R 
 43. 
 
 The minute of adjudication did not contain any statement as 
 to the term of imprisonmert. Conviction quashed. Ex parte 
 Hill, (1891) 31 N. B. R, 84. 
 
 A variance between the minute and the conviction whereby the 
 minute omitted any reference to the costs of distress and convey- 
 ing to gaol will not invalidate the formal conviction, because such 
 costs are obligatory when a summary conviction imposes a fine, 
 and awards distress and imprisonment in default of distress. R. v. 
 Beagan (No. 2), (1902) 36 K S. Rep. 208, and 6 C. C. C. 56, 
 and notes thereto. 
 
 A conviction which is in proper form will not be quashed by 
 reason of its being founded upon a minute of adjudication which 
 does not disclose an offence in law, if the Court is satisfied upon 
 perusal of the depositions that the offence for which the formal
 
 MINUTE OF CONVICTION. 271 
 
 conviction was made was in fact committed. R. v. Wliiffin, (1900) 
 4 C. C. C. 141. 
 
 The justice may correct in his minute any mistake he made in 
 computing costs, although he had previously announced the incor- 
 rect amount. The minute need not contain everything necessary 
 to a perfect conviction. R. v. McDonald, 26 1ST. S. B. 94, per 
 BITCHIE, J., at p. 102. 
 
 A minute of conviction for selling liquor without a license in 
 contravention of E. S. 0., ch. 245, stated that, in default of pay- 
 ment of the fine and costs imposed, the same was to be levied by 
 distress, and in default of distress imprisonment for three months. 
 The section (72) on which the conviction took place did not auth- 
 orize distress, but only imprisonment on default in payment, and 
 the Court held that the fact of minute directing distress did not 
 prevent the justice from drawing up and returning in answer to a 
 certiorari a conviction, omitting the provision as to distress. This 
 being done, the amended conviction was held good under sec. 105 
 of B. S. 0., ch. 245. R. v. Hartley, 20 0. E. 481, and see R. v.' 
 Richardson, 20 0. E. 514; R. v. Hazen, 20 A. E, 633; R. v. Me* 
 Ann, 4 B. C. E. 587. 
 
 When the adjudication did not provide for distress, but directed 
 imprisonment in default of payment of the fine and costs, it was 
 held that a conviction could not be made directing distress, and on 
 default imprisonment, and that a conviction which did not follow 
 the adjudication was invalid. R. v. Gantillon, 19 0. E. 197. 
 
 Where a minute of conviction mentioned no definite time for 
 payment of the penalty, it was held that the conviction must be 
 taken to require payment forthwith. R. v. Butler, 32 C. L. J. 594 ; 
 and see R. v. Caister, 30 U. C. E. 247. 
 
 The minute of conviction need not state the amount of costs 
 where costs are awarded. Unless the defendant requires it for the 
 purpose of payment, it is sufficient that the amount is stated in the 
 conviction. Ex p. Porter, 28 1ST. B. E. 587. 
 
 " Then there is a variance between the minute of conviction 
 and the conviction. The minute provides for payment of the ' costs 
 of conveying to gaol/ and the conviction for the ' costs and charges 
 of the said distress and of conveying' to gaol. In my opinion, it 
 is unnecessary for the magistrate to insert the provision as to the 
 costs of distress and conveyance to gaol in ihe minute. The statute 
 fixes that and the magistrate had no discretion to adjudicate in 
 regard to it, or power to deal with it. He need insert nothing, I
 
 272 VARIANCE BETWEEN MINUTE AND CONVICTION. 
 
 think, which the law supplies as a consequence of the sentence. 
 The provision is properly set out in the conviction; and, as its 
 insertion in the minute was unnecessary, the variance is imma- 
 terial." GRAHAM, E.J., at p. 132, in R. v. Vantassel (No. 1), 
 (1894) '5 C. 0. C. 128. 
 
 The conviction provided for the imprisonment of the defend- 
 ant for forty days " unless the said sums (the penalties and costs 
 of conviction), and the costs and charges of the said distress, shall 
 be sooner paid." The minute of conviction, after providing for 
 the forty days' imprisonment, added, "unless the said sums shall 
 be sooner paid." The conviction, having omitted the provision 
 as to costs of conveyance to gaol, was held to be bad. R. v. Van- 
 tassel (No. 2), (1894) 5 C. C. C. 133, and see Ex parte Wlialen, 
 29 N. B. E. 146. 
 
 At the conclusion of the case, the magistrate wrote, " I adjudge 
 the defendant to pay a fine of twenty dollars and costs in default 
 to thirty days' gaol, liquor to be forfeited to His Majesty, and sold 
 to wholesale dealers, proceeds to go towards public hospital," but 
 he inserted "one month" in the conviction, instead of thirty 
 days. 
 
 Held, a sufficient minute of conviction, if the justice had power 
 in law to make it. 
 
 The statute under which the conviction was made authorized 
 imprisonment for a period not exceeding "one month." It was 
 argued that thirty days might exceed a month, because the month 
 of February has ordinarily twenty-eight days. Held, nothing in 
 this argument, and the conviction was sustained. Ex parte Rogers, 
 (1903) 7 O. C. C, 314. 
 
 DRAWING UP THE CONVICTION OR ORDER. 
 
 A conviction may be described as a record containing a 
 memorial of the proceedings had under the authority of a penal 
 statute before justices of the peace, or commissioners, duly 
 authorized to receive an information and proceed to judgment. 
 Paley, 8th ed., 182. 
 
 The general requirements of a conviction are that it should be 
 precise and certain, and shew that the convicting magistrate has 
 power to convict, that the requisite proceedings preliminary to the 
 conviction have been duly taken, and that the defendant has been 
 found guilty of the offence charged against him.
 
 REQUIREMENTS OF CONVICTIONS. 273 
 
 A warrant of commitment after sentence of imprisonment is 
 not invalid because it was issued and acted on before the formal 
 conviction was drawn up. R. v. Langlois, 20 C. O. C. 183. 
 
 The general qualities of a conviction in substance are, first, 
 that it be full and correct, and, secondly, as the whole jurisdiction 
 in summary proceedings is founded upon and solely derived from 
 special Acts of Parliament, it is fundamentally required, in a con- 
 viction for any offence, that the directions of the particular statute 
 relative to that offence should appear upon the face of it to have 
 been substantially complied with, both as regards the subject- 
 matter of the offence being clearly brought within the meaning 
 of the Act and also the final judgment. Paley, 8th ed., 195. 
 
 And, if the charge falls short of the legal description of the 
 offence, the omission is not cured by any allegation of its being 
 done unlawfully or fraudulently, or the like, or by stating that it 
 was against the form of the statute; for the last allegation is no 
 more than a legal inference which must be supported by the pre- 
 mises, although the meaning of the charge was understood by the 
 party charged, and the charge was in a form used time out of 
 mind. R. v. Juices, 8 T. R. 536; Re Geswood, 2 E. & B. 952; 
 Fletcher v. Calthrop, 6 Q. B. ,880, 889; Ex parte Hopkins, 61 L. 
 J. Q. B. 240. 
 
 The charge should be positive andi certain, in order that the 
 defendant may be protected from a second accusation in respect 
 of the same fact, and in order also that the judgment may appear 
 appropriate to the offence. 
 
 An offence cannot be charged disjunctively, or in the alter- 
 native in a conviction. 1 Balk. 372; 2 Hawk., c. 25, s. 59. Though 
 it may perhaps be so in an order. R. v. Middlehurst, 1 Burr. 399. 
 
 The charge in a conviction must be certain, and must be so 
 stated as to be pleadable in a second prosecution for the same 
 offence. R. v. Hoggard, (1870) 30 IT. C. R. 152. 
 
 A conviction for unlawfully practising medicine without being 
 registered is bad, unless it specifies the particular act or acts con- 
 stituting the alleged practising. R. v. Coulson, 24 0. R. 246, 1 
 C. C. C. 114. 
 
 A conviction for doing worldly labour on Sunday contrary to 
 the Lord's Day Act is void for uncertainty unless the acts which 
 constitute the offence are specified. R. v. Somers, (1893) 1 C. C. 
 C. 46, 24 0. R. 244. 
 
 C.C.P. 18
 
 274 EXAMPLES OF INVALID CONVICTIONS. 
 
 A conviction under sec. 517 (f) of the Code for doing an un- 
 lawful act in a railway yard, in a manner likely to cause danger 
 to life, or person, is bad for uncertainty, if it does not disclose the 
 nature of the unlawful act R. v. Porte, (1908) 14 C. C. C. 238. 
 
 "The conviction here is bad, because it does not specify the 
 particular act, or acts, which constituted the alleged practising of 
 medicine. . . . But the magistrate had jurisdiction, and we 
 ought, therefore, to look at the evidence to see if an offence was 
 committed, and, if so, we should amend the conviction; but, look- 
 ing at all the evidence, we cannot come to the conclusion that an 
 offence was committed of the nature specified in the conviction." 
 ARMOUR, C.J., at p. 117, in R. v. Coulson, supra. See also Re 
 Donnelly, 20 C. P. 165, and R. v. Whalen, (1900) 4 C. C. C. 277. 
 
 The disclosure in the evidence of the defendant of several 
 illegal sales made on the same day will not invalidate a conviction 
 thereon for illegally selling liquor, although the conviction does 
 not specify to which particular sale or sales the same relates. R. 
 v. Moore, (1898) 2 C. C. C. 57. 
 
 A conviction for " unlawfully procuring or attempting to pro- 
 cure" a girl to become a prostitute is void for duplicity and for 
 uncertainty. R. v. Gibson, (1898) 2 C. C. C. 302. 
 
 A conviction for using profane language on a public street is 
 invalid unless the words complained of are set out therein. R. v. 
 Smith, (1899) 2 C. C. C. 485. 
 
 A conviction for wilful injury to property did not specify either 
 the nature of the property injured, or the nature of the injury 
 thereto. Held, void for uncertainty and prisoner discharged. 
 R. v. Leary, (1904) 8 C. C. C. 141. See also Smith v. Moody, 
 [1903] 1 K B. 56. 
 
 A village by-law provided that all pool-rooms in the village 
 should be closed from 8.30 p.m. every Saturday until 7 a.m. the 
 following Monday, and should remain closed on every other day 
 from 10 p.m. until 6 a.m. the following day. The defendant was 
 convicted for that " he did refuse to close a pool-room occupied by 
 him in the village of Carman after the hour of half-past eight, 
 contrary to the by-law of the village in that behalf." Held, the 
 conviction bad, and should be quashed on the following grounds: 
 1. It di'd not state that the pool-room had been kept open after 
 half-past eight in the afternoon. 2. It did not state that it was 
 on a Saturday, or Sunday, the offence was committed: for, on 
 any other day the pool-room might have been lawfully kept open 
 until 10 o'clock p.m. 3. The conviction did not give the date
 
 EXAMPLES OF INVALID CONVICTIONS. 275 
 
 when the offence had been committed, and, for all that it stated, 
 it might have been before the by-law came into operation, or more 
 than six months before the information was laid. In re Fisher 
 and the Village of Carman, (1905) 15 M. E. 475, and 9 C. C. 
 C. 451. 
 
 If the information charges more than one offence, all but one 
 should be struck out upon objection being taken; where the objec- 
 tion was overruled and evidence taken on the several charges until 
 the conclusion of informant's case, when all but one charge was 
 abandoned, a conviction upon that one was held invalid and 
 quashed on appeal. R. v. Austin, (1905) 10 C. C. C. 34. 
 
 The information was for "keeping liquor for sale," the sum- 
 mons issued and served on the defendant was for " selling liquor 
 contrary to law," and, the defendant not appearing, after hearing 
 evidence for the prosecution, the defendant was convicted for 
 " keeping liquor for sale/' Held, conviction bad because the de- 
 fendant had never been summoned to answer the charge of which 
 he was convicted. Ex parte Melanson, (1908) 13 C. 0. C. 251. 
 
 A summary conviction for being "a loose, idle person or 
 vagrant," without specifying in what the vagrancy consisted under 
 sees. 207, 208 (now 238, 239), is clearly bad. "You might as 
 well charge a man generally with being a thief; the accused was 
 entitled to know under what sub-section of sec. 207 (now 238) 
 he was charged, that is, what the facts were on which the prosecu- 
 tion relied." HUNTER, C.J., in R. v. McCormack, (1903) 7 C. C. 
 C. 135, 9 B. C. E. 497, but see R. v. Young, (1905) 12 0. C. C. 
 109, and R. v. Demetrio, 20 C. C. C. 316. 
 
 A summary conviction for vagrancy is void for multifarious- 
 ness, if it charges a defendant with both, (a) obstructing passen- 
 gers in the street, and (b) with causing a disturbance in the 
 street, these being separate offences under clauses (a)' and (b) of 
 sec. 238 of the Code. 
 
 And a conviction for causing a disturbance in a public place 
 and being thereby a vagrant, must specify one of the means of 
 causing the disturbance which are specified in clause (f), i.e., 
 screaming, swearing or singing, or by impeding or incommoding 
 peacable passengers. R. v. Code, (1908) 13 0. C. C. 372. 
 
 In Smith v. Moody, [1903] 1 K. B. 56, Lord Alverstone, C.J., 
 at p. 60, said : " The second objection to the conviction is that it 
 does not sufficiently specify the property of the respondent whicn 
 the appellant is alleged to have injured, the only words used being 
 ' did injure the property of ' the respondent, I have come to the
 
 276 VAGRANCY. 
 
 conclusion that this objection is good and must prevail. I was 
 at first inclined to think that the defect was cured by sec. 39 of 
 the Summary Jurisdiction Act, 1879, which provides that 'the 
 description of any offence in the words of the Act creating the 
 offence/ or in similar words, shall be sufficient in law, but on 
 further considering the question, which is undoubtedly one of 
 importance, it seems to me that it could not have been intended 
 by that section to do away with the old rule of criminal practice 
 which requires that fair information and reasonable particularity 
 as to the nature of the offence must be given in indictments and 
 convictions. All that is meant by sec. 39 is, that the offence itself 
 need only be described in the words of the statute creating it" 
 
 VAGRANCY. 
 
 A wilful refusal by the father to support his illegitimate in- 
 fant child, when able to do so, is an offence under the vagrancy 
 sections of the Code (238, 239). E. v. Barthos, 17 C. C. C. 459. 
 
 As to the evidence required for proof of vagrancy in different 
 cases, see R. v. Davidson, 8 M. R. 325; R. v. Kolotyla, 21 M. R. 
 197, 19 C. C. C. 25; R. v. Munroe, 19 C. C. C. 86. 
 
 It is an essential ingredient of the offence of vagrancy for 
 a prostitute wandering in the public streets and not giving a satis- 
 factory account of herself, that the officer should request an ex- 
 planation from the woman, and the onus is on the Crown to prove 
 both the request and the failure to give a satisfactory explanation. 
 The conviction, which omitted to set out that the accused was 
 asked to give an account of herself before arrest, was held bad by 
 CRAIG, J., in R. v. Harris, 13 C. C. O. 393, and by MACDOXALD, 
 J., in R. v. Pepper, 15 C. O. C. 314. 
 
 But these cases were expressly dissented from by WALSH, J., 
 in Re Brady, 21 C. C. C. 123, where it was held, that the absence 
 from the conviction of the allegation that the woman had been 
 asked to give an account of herself was not fatal to its validity. 
 
 Notwithstanding the provision of sec. 723 (3) of the Code 
 that the description of any offence in the words of the Act creat- 
 ing the offence, or any similar words, shall be sufficient in law, 
 it is still necessary to specify in the conviction whatever the 
 accused has done which brings him within the words of the statute. 
 Smith v. Moody, supra, and Cotterill v. Lempriere, 24 Q. B. D. 
 639. 
 
 " I think that sec. 39 of the Summary Jurisdiction Act of 
 1879, which provides that it is sufficient to describe the offence in
 
 EXAMPLES OF INVALID CONVICTIONS. 277 
 
 the words of the statute creating the offence, cannot be supposed 
 to have (been intended to break down the very important rule 
 which has prevailed now for at least 200 years in the administra- 
 tion of justice with respect to the sufficiency of particulars in a 
 conviction. I do not think for a moment that it was intended to 
 relieve persons who had to draw up convictions from inserting 
 anything which was necessary as an ingredient of the offence of 
 which the particular defendant had been found guilty. When one 
 comes to the description of the offence itself, then it is quite suffi- 
 cient if it is described in the terms of the statute, however general 
 they may be. At the same time, the old rule must prevail that, 
 whatever is necessary to shew that the person convicted has done 
 something which brought him within the words of the statute, 
 must still be specified. It is not that there is any insufficiency in 
 the description of the offence itself. The description of the 
 offence follows the words of the statute; but there is insufficiency 
 with respect to the ingredients of the offence which the appellant 
 has committed and for which he has been convicted. I think 
 specific information as to the injury to property ought to have 
 been given in the conviction." WILLS, J., in Smith v. Moody, 
 supra. 
 
 If a statute gives summary proceedings for various offences 
 
 specified in several sections, a conviction is bad which leaves it 
 
 uncertain under which section it took place. Charter v. Greame, 
 13 Q. B. 216. 
 
 A conviction alleged in the words of the statute that the de- 
 fendant unlawfully and maliciously committed damage, injury 
 and spoil to and upon the real and personal property of the Long 
 Point Company. Held not sufficient, because it was not alleged 
 what the particular act was which was done by the defendant that 
 constituted the damage complained of. R. v. Spain, 18 0. E. 385. 
 
 Where there is no provision making it sufficient to use the 
 words of the statute, a conviction is bad for uncertainty, if it does 
 not specify the act or acts which constitute the offence under the 
 statute. R. v. Somers, 24 0. E. 244. 
 
 A conviction in the form prescribed toy the Criminal Code will 
 not be held bad because it also contains recitals shewing certain 
 adjournments of the hearing before the justice, but not shewing 
 that no adjournments had been made for a longer period than the 
 eight days allowed, although more than three months had elapsed 
 from the commencement to the end of the proceeding. It is not 
 necessarilv to be inferred from the statement of certain facts which
 
 278 EXAMPLES OF INVALID CONVICTIONS. 
 
 were not required to be stated, that other circumstances necessary 
 to the jurisdiction of the magistrate did not exist. Proctor \. 
 Parker, (1899) 12 M. R. 528, 3 C. G. C. 374. 
 
 The description of the offence must at least be as particular as 
 that used by the statute. Any words which do not sufficiently 
 describe the offence will not do, but a variation from the precise 
 words is not fatal, if the words are such as bring the case within 
 the plain meaning of an Act of Parliament. 
 
 As a general rule where an Act in describing the offence makes 
 use of general terms which embrace a variety of circumstances, it 
 is not enough to follow in a conviction the words of the statute, 
 but it is necessary to state what particular acts prohibited had 
 been committed. 
 
 Particular sums, or quantities, must be specified in the con- 
 viction. 
 
 A defendant was convicted for refusing to account and pay 
 over the money received by him as a collector. The conviction was 
 quashed because no particular sum was specified nor the times 
 when the money was charged to be received, so as to enable him 
 to defend himself upon a second charge. The Court said it was 
 one entire nonfeasance charged both in the conviction and com- 
 mitment and they would not sever them. R. v. Catherall, 2 Stra. 
 900. 
 
 In a conviction for taking and destroying fish, the number or 
 quantity of fish taken, killed or destroyed by the defendants should 
 be stated. R. v. Marshall, 2 Keb. 594. 
 
 A conviction under the Fisheries Act, Canada, which merely 
 specified the offence as " illegal fishing," is bad for uncertainty. 
 Ex parte Dixon, (1903) 7 C. C. 0. 336. 
 
 In those cases where a magistrate is directed to award com- 
 pensation according to the injury, or to assess a penalty by way 
 of damages, it is requisite that particulars as to quantities should 
 be enumerated in the conviction. 
 
 "In trespass, the nature and number of things ought to be 
 mentioned, and much more in a conviction where all imaginable 
 certainty is requisite." LD. HOLT, C.J., in R. v. Burnaby, 2 Ld. 
 Eaym. 900. 
 
 An indictment for selling in unlawful measures divers quan- 
 tities of ale, was held too general and bad on demurrer. R. v. 
 GiWs, 1 Str. 497. 
 
 As to the manner of alleging the quantity of the article in 
 question, a conviction for buying a certain quantity of wheat, to
 
 CONVICTION FOR SEVERAL OFFENCES. 279 
 
 wit, fifteen bushels of wheat (contrary to the Lord's Day Act, 22 
 & 23 Car II., c. 12), has been held sufficiently certain. R. v. 
 Arnold, 5 T. R. 353. 
 
 SEVERAL OFFENCES. 
 
 A conviction for two offences is bad. A conviction " for creat- 
 ing a disturbance and acting in a disorderly manner by fighting 
 on the street and breaking the peace contrary to the by-law and 
 statute in that behalf," held defective. And, if it impose imprison- 
 ment with hard labour in default of payment of the fine, and it 
 is uncertain whether it is made under the statute, or a by-law, 
 hard labour being unauthorized under the by-law, it will be bad. 
 R. v. Washington, 46 U. 0. R. 221. 
 
 A conviction for two several and distinct offences, but imposing 
 one penalty only, is bad where it does not appear for which offence 
 the penalty is inflicted. R. v. Gravelle, 10 0. R. 735. 
 
 Where a defendant was convicted for that he " did in or about 
 the month of June, 1880, on various occasions," commit the offence 
 charged in the information and a fine was inflicted lt for his said 
 offence," conviction held bad as shewing the commission of more 
 than one offence. R. v. Clennan, 8 P. R. 418. 
 
 But see R. v. Michaud, 17 O. C. C. 86, where it was held that 
 the prosecution may elect to treat various acts of obstruction of a 
 railway by placing pieces of iron on the rails in a manner likely to 
 wreck a train, the acts continuing for several weeks, as cumulative 
 acts forming one offence in law against sec. 517 of the Code, and 
 give evidence of all the acts at one trial. 
 
 See also notes to R. v. Michaud, supra, pp. 97-103, in which 
 the editor collects the cases as to duplicity, continuing offences and 
 as to whether any particular charge is for one or more offences. 
 
 Where the Consolidated Ordinance, ch. 89, sec. 102, N. W. T., 
 provided that several offences may be included in the one informa- 
 tion and the magistrate adjudged the accused guilty of each offence, 
 and the Ordinance, sec. 106, also provided that convictions for 
 several offences may be made, although committed on the same 
 day. Held, it was not necessary that separate convictions should 
 be drawn up, but the fines may be imposed in and by the one con- 
 viction adjudging a forfeiture in respect of each offence. R. v. 
 Whiffen, (1900) 4 C. C. C. 141. 
 
 The Ordinance did not authorize imprisonment at hard labour 
 in default of payment of the fine, and in answer to a certiorari the
 
 280 CONVICTIONS MUST BE SEALED NAMES. 
 
 magistrate returned an amended conviction omitting the hard 
 labour. Held that the conviction was not bad by reason of its 
 being at variance with the minute of adjudication which had im- 
 posed hard labour. Ibid. And see Simpson v. Lock, (1903) 7 
 C. C. C. 294. 
 
 CONVICTIONS MUST BE UNDER SEAL. 
 
 A conviction must be under seal: In re Ryer \. Plows, 46 
 U. C. E. 206; Bond v. Conmee, 15 0. E. 716, 16 A. E. 398. In 
 this latter case a paper purporting to be a conviction signed by the 
 magistrate but not under seal was returned to a certiorari issued 
 in aid of a habeas corpus. Conviction was held to be a nullity as 
 it was not under seal. See also remarks of CRAIG, J., at p. 104, in 
 R. v. L'Heureux, (1908) 14 C. C. C. 100. 
 
 In summary cases when the hearing is fixed at some place 
 distant from the residence of the defendant it might result in the 
 denial of justice; but, if there is jurisdiction in the justice who 
 tries the case, this Court will not interfere by prohibition. DRAKE, 
 J., at p. 83, in R. v. Chipman, (1897) 1 C. O. C. 81. 
 
 NAMES OF THE PARTIES. 
 
 When there are several offenders each must be specifically 
 named in the conviction. The omission of the Christian name of 
 any of them is fatal. In re McDonald Bros., 34 C. L. J. 475. 
 
 The name of the informant, or complainant, must appear on 
 y the face of the conviction in some form. Hennesy v. Ossier, 8 IT. 
 C. L. J. 299. 
 
 If the defendant pleads to an assumed name he cannot, after 
 conviction, object that it is not his real name. Ex p. Corrigan, 2 
 C. C. 0. 591. 
 
 The justices are not bound by the names contained in the in- 
 formation, but may draw up the conviction with what appear to 
 be the proper ones. Whittle v. Frankland, 31 L. J. M. C. 81, 2 
 B. & S. 49. 
 
 If an offender refuses to give his name and it is not disclosed, 
 he may be described as a person whose name is unknown to the 
 justices, and identified by some fact, for instance that he is per- 
 sonally brought before them by a certain constable. R. v. , 
 
 R. & E. 489.
 
 NAMES, TIME AND PLACE. 281 
 
 If the name or names of the persons aggrieved are not known 
 it should be so stated; if known they should be accurately stated. 
 2 Hale 181. 
 
 A summary conviction describing the defendant as " Mrs. 
 Morgan " was held bad. R. v. Morgan, 1 B. C'. E. pt. I., 245. 
 
 The name and style of the magistrate, or justices, by whom the 
 conviction was made must be set forth in the conviction, so that it 
 may appear that they are justices of the county, or district, where 
 the offence is stated to have happened; this is necessary in order 
 that their jurisdiction may be shewn upon the face of the pro- 
 ceedings. See R. v. Walsh, 2 0. B. 206; Ex p. Bradlaugh, 3 Q. 
 B. D. 509 ; R. v Bradley, 17 Cox 739 ; and see R. v. Young, 5 0. 
 E. 184a; R. v. McGregor, 26 0. E. 115; R. v. ATcerman, I B. C. E. 
 pt. 1, 255. 
 
 TIME AND PLACE. 
 
 The conviction must specify the time and place of committing 
 the act complained of. The precise day need not be named, but 
 it will be sufficient if the fact be alleged to have happened between 
 such a day and such a day, provided the last of the days specified 
 is within the time limited. See R. v. Wallace, 4 0. E. 127 ; R. v. 
 Butler, 32 C. L. J. 594, and R. v. Adams, 24 N. S. E. 559. 
 
 Alleging that the act was done at a certain place in the town- 
 ship of A. is sufficient, if a public Act shews that that township is 
 within the county for which the justice is appointed. R. v. Shaw, 
 23 U. C. E. 616 ; see also Ex p. Macdonald, 27 S. C. E. 683 ; R. v. 
 Olerlander, (1910) 16 C. C. C. 244, and R. v. Picard, 21 C. C. C. 
 250. 
 
 A conviction stated the offence to have been committed in the 
 county of Norfolk. The information charged the offence as in 
 the municipality of North Cypress in the county of Norfolk in the 
 province of Manitoba. By statute the municipality of North 
 Cypress was in the county of Norfolk. In the absence of any 
 affidavit denying that the magistrate had jurisdiction, held, that 
 an objection that no offence within the province had been shewn 
 was untenable. But, costs unwarranted by statute having been 
 imposed, the conviction was held bad. Re Billy, (1890) 6 M. E. 
 472. 
 
 A conviction for keeping a house of ill-fame must name a place 
 at which the offence was committed, and it is not sufficient to 
 allege that the offence was committed at the city of Ottawa with-
 
 282 TIME AND PLACE NEGATIVING EXCEPTIONS. 
 
 out further description of the particular locality. The conviction 
 should describe the place in such a way as by street and number 
 that the particular house could be easily identified. R. v. Cyr, 
 12 P. R. 24. 
 
 A conviction was for keeping a house of ill-fame on the llth 
 October and on other days and times before that day. Held suf- 
 ficiently certain as to time. The information described the parties 
 as of the township of East Whitby, and had " county of Ontario " 
 in the margin. It charged that they kept a house of ill-fame but 
 did not expressly allege that they did so in that township or 
 county. The evidence, however, shewed that the place at which 
 such house was kept was in East Whitby, in which the justice had 
 jurisdiction. Held sufficient. R. v. Williams, 37 U. C. R. 540. 
 
 The defendant was convicted by the S. M. for the city of Hali- 
 fax of the offence of "keeping a disorderly house, that is to say, 
 a common bawdy house, on the 21st April, 1901, and on divers 
 other days and times during the month of April, 1901," and was 
 fined, &c. Held, dismissing application for habeas corpus, that the 
 offence as charged did not constitute more than one offence, and 
 that the word "keeping" implied a continuous offence. R. v. 
 Keeping, 34 1ST. S. R, 442. 
 
 An objection was taken to the conviction that on its face it was 
 for an offence committed between the 8th and llth days of March, 
 1908 (the information was laid on the last named day), leaving 
 it uncertain whether the offence was committed before the informa- 
 tion was laid. " There is nothing in the point. The information 
 on which the conviction is made could not very well have reference 
 to an offence after the information was made." BARKER, C.J , 
 in Ex parte Wilson, (1908) 14 C. C. C. 32. But see upon this 
 point. R. v. Keeping, 4 C. C. C. 494. 
 
 NEGATIVING EXCEPTIONS. 
 
 One of the most essential points to be carefully attended to in 
 describing the offence charged is, that every exception, excuse or 
 qualification which accompanies the description of the offence in 
 the enacting clause, be positively negatived. 
 
 This consideration would lead to a conclusion that it is neces- 
 sary to negative all the provisions annexed to the offence, whether 
 by the same or any other clause of the statute, as well as those in 
 the enacting clause. The rule however seems, as established in
 
 NEGATIVING EXCEPTIONS IN CONVICTIONS. 283 
 
 practice, to be restricted to those of the latter description only. 
 Pdey, 8th ed., p. 253. 
 
 The rule, therefore, and distinction resulting from these and 
 confirmed by the cases mentioned in the sequel, seem to be clear, 
 viz., that all circumstances of exception and modification, whether 
 applying to the offence or to the person, that are either originally 
 introduced into, or incorporated by reference with, the enacting 
 clause, must be distinctly enumerated and negatived; but that 
 such matters of excuse as are given by other distinct clauses or 
 provisoes need not be specifically set out, or negatived. Pdey, 
 8th ed., p. 256. 
 
 It is not necessary to notice the proviso merely because it is 
 placed in the same section of the printed Act, unless it is also a 
 part of the enacting sentence, for statutes are not divided into 
 sections upon the rolls of Parliament. It is immaterial whether 
 the exception be in another section, or in another Act of Parlia- 
 ment, if distinctly referred to and engrafted into the enacting 
 clause. Paley, 8th ed., p. 257. 
 
 By sec. 5 of 1 Jac. 1, ch. 22, it is enacted that no person 
 shall carry on the trade of a tanner, except under certain qualifi- 
 cations therein mentioned; the seventh section enacts that no 
 person shall buy or contract for any rough hides, &c., but such 
 person as by virtue of that Act might lawfully use the trade of a 
 tanner. In a conviction upon this section it was held not to be 
 sufficient to set forth, in the words of it, that the defendant was 
 not such a person as by virtue of that Act might lawfully use the 
 trade of a tanner, but the conviction must particularly negative 
 his being within any of the enumerated exceptions mentioned in 
 the fifth section. R. v. Pratten, 6 T. E. 559. 
 
 If an exception occurs in the description of the offence the 
 exception must be negatived. But if the exception is by way of 
 proviso and does not alter the offence, but merely states what 
 persons are to take advantage of it, the onus is on the accused to 
 plead and prove himself within the proviso. R. v. Strauss, (1897) 
 5 B. C. R. 486, 1 C. C. C. 103. 
 
 The difference between the exception being by way of proviso, 
 or following the enactment, is illustrated by the two cases follow- 
 ing: 
 
 (1) A by-law of the city of London, Ontario, enacted that 
 " no person shall in any of the streets, or in the market-place of the 
 city of London, blow any horn, ring any bell, beat any drum, play
 
 284 NEGATIVING EXCEPTIONS IN CONVICTIONS. 
 
 any flute, pipe or other musical instrument, or shout or make, &c., 
 &c., any noise calculated to disturb the inhabitants of the said 
 city. Provided always that nothing herein contained shall pre- 
 vent the playing of musical instruments by any military band of 
 Her Majesty's regular Army, or of any military corps lawfully 
 organized under the laws of Canada." The defendant was con- 
 victed for beating a drum. On an application to quash the con- 
 viction it was held not necessary that either the conviction, or com- 
 mitment, should shew that the defendant did not come within the 
 exception in the proviso. R. v. Nunn, (1884) 10 P. E. 395. 
 
 (2) A conviction for selling liquor on a Sunday omitted to state 
 that the liquor was not supplied upon a requisition for medicinal 
 purposes. Held bad, since the enactment prohibiting the sale 
 was immediately followed by these words, " save and except in 
 cases where a requisition for medicinal purposes, signed by a 
 licensed medical practitioner or by a justice of the peace, is pro- 
 duced by the vendee or his agent." R. v. White, (1871) 21 C. P. 
 354, See also R. v. McFarlane, 17 C. L. T. Occ. N. 29; R. v. 
 Smith, 31 0. B. 224; R. v. McKenzie, 6 0. E. 165. 
 
 A statute declared certain acts committed by " any person not 
 legally empowered . . . without the owners' permission,*' 
 to be unlawful. A conviction stating the acts done, but not 
 negativing power and permission, Held bad, R. v. Morgan, (1887) 
 5 M. E. 63. 
 
 These rules are not now of the same value and importance as 
 formerly in view of the provisions of sees. 1124 and 1125 of the 
 Code relating to convictions removed by certiorari, and the powers 
 given to the Court or Judge in dealing with objections thereto. 
 
 For the wording of sec. 1124 see page 267 supra, and it is 
 provided by sec. 1125 that 
 
 "(c) The omission to negative circumstances, the existence 
 of which would make the act complained of lawful, whether such 
 circumstances are stated by way of exception or otherwise, in the 
 section under which the offence is laid, or are stated in another 
 section," shall be held to be within the provisions of sec. 1124. 
 See Ex parte Mitchell, 16 C. C. C. 205, and Ex parte Mclntyre, 
 16 C. C. C. 38. 
 
 FORFEITUBE OP THE PENALTY. 
 
 The conviction must adjudge a forfeiture of the penalty. Upon 
 consulting the form 32 it will be seen that the adjudication is a& 
 follows :
 
 FORFEITURE OF THE PENALTY MUST BE ADJUDGED. 285 
 
 "And I adjudge the said A. B. for his said offence to forfeit 
 and pay the sum of $ ... &c., &c., to be paid and applied 
 
 according to law, &c., &c., and if the said several sums are not 
 paid forthwith, &c., I adjudge the said A. B. to be imprisoned, 
 &c., &c." 
 
 The defendant was convicted and adjudged " to forthwith pay 
 $100 and in default of payment to be imprisoned for six months." 
 Held, no adjudication of forfeiture and prisoner discharged. R. 
 v. Crovell, (1897) 2 C. C. C. 34. 
 
 The conviction adjudged imprisonment " and also to pay a fine 
 of $5, to be paid and applied according to law." Held, invalid 
 for want of adjudication of forfeiture. R. v. Burtress, (1900) 3 
 C. C. C. 536 ; see E. v. Newton, 11 P. R. 98, and E. v. Cyr, 12 P. 
 R. 24. 
 
 In awarding punishment the justice should be careful not to 
 exceed the authority given him by the statute. 
 
 A conviction containing an adjudication far in excess of that 
 which might lawfully have been imposed will not be amended upon 
 certiorari. Leonard v. Pelletier, (1903) 9 C. C. C. 19. 
 
 On a summary conviction under Code section 537 for wilfully 
 killing a dog, the whole penalty which is not to exceed $100 " over 
 and above the amount of injury done," belongs to the Crown and 
 there is no jurisdiction in the magistrate to award damages to be 
 paid to the owner of the dog: E. v. Cook, 16 C. C. C. 234. The 
 owner's remedy for damages would be by an action brought in a 
 civil Court. 
 
 CONVICTIONS GENERALLY. 
 
 A conviction by two justices for taking certain timber felon- 
 iously or unlawfully. Held bad, for it should not have been in the 
 alternative;, if the taking was unlawful only, not felonious, it 
 should have been shewn how unlawful, and also that the offence 
 came under some statute which gave the justices power to convict. 
 E. v. Craig, 21 U. 0. R. 552. 
 
 Where the conviction purported to be for an offence against 
 a by-law, but shewed no such offence, it was quashed, and it was 
 held that it could not be supported as warranted by the general 
 law. In Re Bates, 40 U. C. R, 284. 
 
 Whire a conviction proceeded on a repealed statute the Court 
 quashed the conviction although it might have been supported
 
 2S6 EXAMPLES OF INVALID CONVICTIONS. 
 
 under the repealing Act if the justices had professed to proceed 
 under it. Michell v. Brown, 1 E. & E. 267, 28 L. J. M. C. 53. 
 
 A conviction under a repealed statute cannot be upheld. R. v. 
 Kauibach, 22 C. C. C. 219, But the repeal of a statute after a 
 conviction under it will not prevent the enforcement of the con- 
 viction by imprisonment or otherwise. Re Lynch, 12 C. C. C. 342. 
 
 Defendant was convicted of allowing his cattle to go at large in 
 the township of Cornwallis. Held that the conviction was bad 
 in that it did not set out the by-law or ordinance of the sessions 
 creating the offence, and that the objection was covered by the 
 ground taken in the rule that the conviction did not shew any 
 offence for which it could be lawfully made. Starr v. Heales, 4 B. 
 & G. N. S. R. 84. 
 
 A conviction for selling intoxicating liquor contrary to the 
 provisions of the Canada Temperance Act contained no reference 
 to the Act, did not shew when the offence was committed and 
 merely adjudged that the defendants pay $100 for selling in- 
 toxicating liquors. Held, bad. The information and warrant 
 cannot be looked at to see that an offence has been committed. 
 Woodlock v. Dickie, 6 E. & G. N. S. E. 86, 6 C. L. T., Occ. K 
 142. 
 
 If a statute specifies the grounds of forfeiture the conviction 
 must shew specifically the particular fact which forms the ground 
 of forfeiture, in order that the Court may see that the penalty has 
 been properly imposed and be quite sure that the convicting jus- 
 tice has not mistaken the law. Ex parte John Smith, 3 D. & B. 
 461. 
 
 A conviction is bad if it charges the offence in the alternative. 
 Where it was set out in the conviction that the defendant "did 
 kill, take, destroy or attempt to kill, take and destroy," the fish, 
 the Court quashed the conviction for insufficiency. R. v. Sadler, 
 2 Chit. 519. See, also, R. v. Roach, 23 C. C. C. 28. 
 
 If one of the ingredients required by the statute be the know- 
 ledge of the party, nothing short of a direct averment to that 
 effect is sufficient. Dickinson v. Fletcher, L. E. 9 C. P. 1. 
 
 The defendant pleaded guilty to a charge, intended to be 
 framed under sec. 242A of the Code (enacted in 1913), that he 
 " did neglect his wife," and the conviction was only a record of 
 this plea. Held that a formal conviction and warrant of commit- 
 ment framed in the language of the statute could not be supported 
 by the plea. R. v. Chitnita, 22 C. C. C. 344. 
 
 "It is a rule with respect to summary proceedings before 
 justices on penal statutes that, after conviction, nothing can be
 
 EXAMPLES OF INVALID CONVICTIONS. 287 
 
 intended, so as to get rid of any defect in point of form. Every- 
 thing necessary to support the conviction must appear on the face 
 of the proceedings, and must be established by regular proof, or 
 by the admission of the party of that which is not proved." 
 HOLROYD, J., in R. v. Daman, 1 Chit. 155. 
 
 All the facts necessary to support the proceedings must be 
 expressly alleged and not left to be gathered by inference, or in- 
 tendment. 
 
 Upon a conviction under 11 Geo. II, c. 19, for a fraudulent re- 
 moval of goods to avoid distress, it was held that, as the justices 
 have no jurisdiction except where one party is landlord and the 
 other tenant, it must appear upon the face of their order that the 
 party removing the goods was tenant, and that it cannot be sup- 
 plied by intendment. R. v. Davis, 5 B. & A. 551. 
 
 Defendant was convicted of unlawfully and knowingly assist- 
 ing the importation of an alien and foreigner into Canada under 
 contract and agreement made previous to his importation to per- 
 form labour and services in Canada contrary to 60 and 61 Viet, 
 ch. 11 (D.) as amended by 61 Viet. ch. 2, and 6 Edw. VII. ch. 13. 
 
 Held, that the written consent of the Judge did not comply 
 with the intention of the statute as it should have contained a 
 general statement of the offence alleged to have been committed, 
 mentioning the name of the person in respect of whom the offence 
 was alleged to have been committed, and the time and place with 
 sufficient certainty to identify the particular offence intended to be 
 charged. Conviction quashed. R. v. Breckenridge, 6 0. "W. K. 
 501, 10 0. L. E. 459. 
 
 Where a conviction was made for ninety days' imprisonment 
 instead of three months, as authorized by the statute, it was 
 quashed, on the ground that ninety days may possibly be more 
 than three calendar months, and an amendment was refused. R. 
 v. Gavin, I 0. C. C. 59, 30 N. S. B. 162. 
 
 It is difficult to understand this decision, for the conviction was 
 made on the 1st of August and the only three successive months 
 containing less than 90 days would be February, March and 
 April. See also R. v. Rudolph, 17 C. 0. C. 206, where it is 
 pointed out that the effect of R. v. Gavin, supra, is wiped out by 
 subsequent legislation, and such a defect was held to be amendable. 
 See, also, R. v. Brindley, post, p. 298. 
 
 In Ex parte Daigle, 18 C. C. C. 211 it was held by two of the 
 Judges that, where a statute imposed three months as the mini- 
 mum term of imprisonment, a conviction awarding only 60 days
 
 288 MUST BE DUE CONVICTION BEFORE PUNISHMENT. 
 
 should be quashed. It sems to the writer, however, that sub-sec- 
 tion (b) of section 1125 of the Code expressly applies to enable 
 the Court to cure such an objection. 
 
 A conviction under a by-law must shew the by-law that the 
 Court may judge its sufficiency. And it must shew by what muni- 
 cipality the by-law was passed. R. v. Osier, 32 U. C. R. 324. 
 
 The death of the prosecutor, who is also informant, after a 
 summary conviction, before the service on him of an order nisi 
 to quash, does not prevent the Court from dealing with the matter 
 and from quashing the conviction. R. v. Fitzgerald, 29 0. R. 
 203. 
 
 On an application to quash, the convicting justice must be 
 made a party to the rule. R. v. Law, 27 U. C. R. 260. 
 
 A conviction for " procuring " a pistol with intent unlawfully 
 to do injury to another person, is not a sufficient conviction for 
 " having on his person a pistol, &c.," and is bad as not disclosing 
 an offence known to the law. R. v. Mines, (1894) 1. C. C. C. 217, 
 25 0. R. 577. 
 
 A person shall only be deemed guilty of an offence and liable 
 to punishment after being duly convicted, and this is enacted by 
 sec. 1027 of the Code as follows: 
 
 1027. Whenever a person doing a certain act is declared to be guilty 
 of any offence, and to be liable to punishment therefor, it shall be under- 
 stood that such person shall only be deemed guilty of such offence and 
 liable to such punishment, after being duly convicted of such act. 
 
 ORDERS OP JUSTICES. 
 
 In considering section 727, we have so far confined ourselves 
 to convictions and must not lose sight of the fact that the section 
 relates to orders as well as convictions. 
 
 In Burns' Justice, vol. 3, p. 1108, it is said : " It is not easy 
 to fix any rule for distinguishing in the abstract between what 
 things are the subject of orders of justice and what of convic- 
 tions" 
 
 By sec. 727 the conviction or order afterwards drawn up shall 
 be et in such one of the forms of convictions or of orders from 
 31 to 36 inclusive as is applicable to the case, or to the like effect.'"' 
 
 Upon reference to these, it will be noticed that the forms of 
 conviction are for "penalties." And the adjudication is ex- 
 pressed to be for both "forfeiture" and payment, whereas the
 
 DISTINCTION BETWEEN ORDERS AND CONVICTIONS. 289 
 
 forms of orders are for the " payment of money/' and the adjudi- 
 cation is for " payment " only, omitting the " forfeiture." In a 
 conviction the defendant is adjudged for his offence " to forfeit 
 and pay," whereas in an order he is adjudged " to pay " simply. 
 
 A conviction states the offence and the time and place when 
 and where it was committed. An order states the facts entitling 
 the complainant to the order With the time and place when and 
 where they occurred. 
 
 A conviction is based upon an information for an offence. 
 An order is based upon a complaint. For instance, under . .the 
 Masters and Servants Act in a claim for wages, the servant com- 
 plains that so much wages are due to him, naming the amount, 
 and if so found by the justice he orders the master to pay the 
 wages, he does not impose a penalty, so that the adjudication of 
 the justice in a case of this kind will be authenticated by way of 
 
 an order and not conviction. 
 
 '. -u^ 
 Upon a complaint laid by a servant for non-payment of wages 
 
 the justice should order the payment of the wages and not impose 
 a penalty. In re Follansby and McArthur, (1874) Man. R. Temp. 
 Wood 4. 
 
 In matters relating to landlord and tenant; the committal 
 of lunatics; of matters concerning children under the Children's 
 Protection Act, and in various other matters outside the Orimmal 
 Code, justices adjudicate by way of order instead of conviction. 
 
 Before the statute of 4 Geo. II, convictions were always re- 
 corded in Latin, whereas orders were returned in English. 
 
 There is no. material distinction between the mode of con- 
 struing an order and a conviction, whatever favourable intendment 
 may be made in support of the former, when once the essential 
 point of jurisdiction is established. R. v. Downshire, 6 N". & M. 
 at p. 105 ; Day v. King, 5 A. & E. at p. 367 ; R. v. Hulcott, 6 T. 
 R. 583. 
 
 It must expressly appear on the face of the order that the 
 justices had jurisdiction to make it, and the facts raising such 
 jurisdiction should be shewn, or it will be bad. 
 
 The order must state that the party against whom it is made 
 was duly summoned to answer the charge, or that he was present 
 at the hearing, unless the statute allows the order to be made ex 
 parte. 
 
 C.C.P. 19
 
 290 REQUISITES OF ORDERS. 
 
 The charge should be stated with the same degree of certainty 
 and precision as in a conviction and the hearing and adjudica- 
 tion must also be stated. 
 
 An order may be good in part and bad for the residue, whereas 
 a conviction is an entire judgment and indivisible; if any material 
 part be faulty it vitiates the whole. R. v. Catherall, 2 Stra. 900. 
 
 An order of justices which is bad in part may be enforced as 
 to the good part, provided that on the face of the order the two 
 parts are clearly separable, and it is not necessary in such case 
 to quash the bad part of the order before enforcing the residue. 
 R. V. Green, 20 L. J. M. C. 168. 
 
 The neglect or refusal to obey an order of justices concerning 
 a matter over which they have jurisdiction, after the order has 
 been personally served on the party required by the order to do 
 the act, is an offence indictable at common law as a misde- 
 meanour, notwithstanding a specific penalty is provided by the 
 statute for the neglect of that duty which the order is intended 
 to enforce. R. v. Robinson, 2 Burr. 799; R. v. Harris, 4 T. E. 
 205 ; R. v. Kingston, 8 East 41 ; R. v. Hollis, 2 Stark. 536 : R. v. 
 Ferrall, 20 L. J. M. C. 39 ; R. v. Walker, L. E. 10 Q. B. 355. 
 
 The signature is an essential part of the order and the order 
 cannot be considered as made until reduced into writing and 
 signed by the justice. R. v. Flintshire, 10 Jur. 475. 
 
 As to serving minute of order before issuing warrant of com- 
 mitment or distress. See sec. 731 of the C'ode. 
 
 CONCLUSION. 
 
 The conviction or order is required to be drawn up on parch- 1 
 ment or on paper under the hand and seal of the justice. 
 
 An order having an impression made on it with ink by means 
 of a wooden block in the usual place of a seal was held sufficient. 
 R. v. 8t. Paul Covent-Garden, 7 Q, B. 232, 14 L. J. M. C. 109. 
 
 Justices need not sign their Christian names at full length: 
 their usual signature is sufficient followed by their description of 
 office as " J.P.," " P.M.," " S.M." 
 
 Wherever a conviction is made by two justices they must both 
 sign and seal the same, though only the signature of one of them 
 is required to the distress warrant and commitment. 
 
 It is essentially necessary that the date should be properly 
 filled in, as this becomes material where the time for conviction 
 is limited by statute.
 
 CONVICTION OF JOINT OFFENDERS. 291 
 
 A magistrate can amend his conviction at any time before the 
 return of a certiorari. R. v. McCarthy, 11 0. E. 657; Ex parte 
 Giberson, (No. 1), (1909) 16 C. 0. C. 66. 
 
 JOINT OFFENDERS. 
 
 728. When several persons join in the commission of the same offence, 
 and upon conviction thereof, each is adjudged to pay the penalty which 
 includes the value of the property or the amount of the injury done, 
 no further sum shall be paid to the person aggrieved than such amount 
 or value and costs, if any, and the residue of the penalties imposed shall 
 be applied in the same manner as other penalties imposed by a justice are 
 directed to be applied. 
 
 Several persons may be charged and convicted jointly of the 
 one offence of keeping a house of ill-fame. R. v. Bloom, 22 C. C. 
 C. 205. 
 
 Any number of persons may be charged and convicted jointly 
 with the offence of playing in a common gaming house, if they 
 were all actually present and taking part in the same game. R. v. 
 Toy Moon, 19 C. 0. C. 33, 21 M. E. 527. 
 
 The defendants E. E. and H. E., his wife, were jointly con- 
 victed for having wantonly, cruelly and unnecessarily beaten, ill- 
 used and abused a yoke of oxen the property of J. W. D., and for 
 such offence were adjudged to pay a fine of $20 and $22.46 for 
 costs, and in default to 'be imprisoned. The Court held that the 
 offence was single in its nature and only one penalty could be 
 awarded, but it ought to be several against each defendant, other- 
 wise one who had paid his proportional part might be kept in 
 * prison until the other had paid the residue. Re Rice, 20 N. S. E. 
 294; Morgan v. Brown, 4 A. & E. 515. 
 
 A conviction of- two persons in partnership for an offence, sev- 
 eral in its nature, and adjudging that they should forfeit and pay, 
 &c., is bad, for a joint conviction in such case is bad; the penalty 
 should have been imposed severally. Ex parte Howard, 25 N. B. 
 E. 191. 
 
 FIRST CONVICTION AND PAYMENT OF DAMAGES. 
 
 729. Whenever any person is summarily convicted before a justice of 
 any offence against Part VI., or Part VII., except section four hundred 
 and nine and sections four hundred and sixty-six to five hundred and eight 
 inclusive, or against Part VIII., except sections five hundred and forty-two 
 to five hundred and forty-five inclusive, and it is a first conviction, the 
 justice may, if he thinks fit, discharge the offender from his conviction 
 upon his making such satisfaction to the person aggrieved, for damages 
 and costs, or either of them, as are ascertained by the justice.
 
 292 DISCHARGE OF OFFENDER FROM FIRST CONVICTION. 
 
 Part VI. of the Code deals with offences against the person and 
 reputation. The only offences enumerated in this part which are 
 punishable upon summary conviction and to which sec. 729 can 
 apply are as follows: 
 
 Sec. 287. (a) Cutting holes in ice and leaving the same un- 
 guarded. 
 
 (b) Leaving abandoned mine unguarded. 
 
 (c) Omits within five days after conviction to guard 
 
 and inclose the same. 
 Sec. 291. Common assault. 
 
 Part VII. deals with offences against rights of property and 
 rights arising out of contracts and offences connected with trade. 
 
 The only offences under this part punishable on summary 
 conviction and to which sec. 729 is applicable are : 
 
 Sec. 370. Stealing any dog, bird, beast or other animal of a 
 
 value not exceeding $20. 
 Sec. 374. Stealing trees, saplings, shrubs or underwood af the 
 
 value of twenty-five cents. 
 Sec. 375. Stealing plants, vegetables or fruit from gardens, 
 
 orchards, &c. 
 Sec. 376. Stealing cultivated plants, not growing in a garden, 
 
 &c. 
 
 Sec. 377. Stealing fences, stiles or gates. 
 Sec. 385. Stealing things deposited in Indian graves. 
 
 Sec. 393. Unlawfully killing or wounding pigeons or house 
 
 doves. 
 Sec. 395. Possessing trees, &c., without being able to account 
 
 therefor. 
 
 Sec. 401. Receiving, or retaining, property unlawfully ob- 
 tained, the stealing of which is punishable on 
 
 summary conviction. 
 Sec. 430. Secreting wreck, or receiving, selling, keeping or 
 
 boarding a wrecked vessel. 
 Sec. 431. Purchasing old marine stores from persons under 
 
 16 years of age or receiving same at night. 
 
 Sec. 435. Unlawful possession and sale, etc., of public stores. 
 
 Sec. 436. Dealers being in possession of public stores unlaw- 
 fully.
 
 DISCHARGE ON PAYMENT OF DAMAGES. 293 
 
 Sec. 437. Searching for stores near Her Majesty's vessels, 
 wharfs or docks without permission. 
 
 Sec. 438. Eeceiving clothing, furniture, provisions, &c., from 
 soldiers or deserters. 
 
 Sec. 439. Eeceiving necessaries from seamen or marines. 
 
 Sec. 440. Eeceiving in pawn or otherwise seaman's property. 
 
 Sec. 441. Not justifying possession of same. 
 
 Part VIII. relates to wilful and forbidden acts in respect of 
 certain property and the only offences enumerated 
 in this part to which sec. 729 can apply are as 
 follows : 
 
 Sec. 515. Eecklessly setting fire to forests if the consequences 
 
 have not been serious. 
 
 Sec. 519. Wilfully damaging goods in railways or vessels. 
 Sec. 521. Attempt to damage or obstruct telegraph, telephone 
 
 or fire alarm. 
 Sec. 524. Preventing or impeding or attempting to prevent or 
 
 impede the saving of any wreck. 
 Sec. 526. Mooring vessel to signal, buoy, or other sea mark 
 
 used for the purposes of navigation. 
 Sec. 527. Eemoving natural bar necessary for a harbour. 
 Sec. 530. Wilful destruction of fences, walls, stiles, gates, &c. 
 Sec. 533. Injuries to trees, saplings, shrubs, etc. 
 Sec. 534. Injuries to vegetable productions in gardens. 
 
 Sec. 535. Injuries to roots or plants elsewhere than in gar- 
 dens. 
 
 Sec. 537. Injuries to dogs, birds or other animals not cattle. 
 
 Sec. 539. Injuries and spoil to property for which no punish- 
 ment is provided in previous sections of the Code. 
 
 The following are the excepted sections : 
 
 Sec. 542. Cruelty to animals. 
 Sec. 543. Keeping a cock pit. 
 
 Sec. 544. Conveyance of cattle by railway without proper rest 
 
 and nourishment. 
 
 Sec. 545. Obstructing officer in search to ascertain if sec. 544 
 has been violated.
 
 294 CERTIFICATE OF DISMISSAL OF COMPLAINT. 
 
 The justice can only apply the provisions of this section 729 
 where it is a first conviction, and for the offences above enumer- 
 ated, and it is a matter entirely in his own discretion, " if he 
 thinks fit" and he must first convict the offender before he can 
 exercise this discretion, since the offender is to be " discharged 
 from his conviction" upon his making satisfaction to the person 
 aggrieved as indicated in the section. 
 
 DISMISSING COMPLAINT. 
 Certificate of Dismissal. 
 
 730. If the justice dismisses the information or complaint, he may, 
 when required so to do, make an order of dismissal in form 37, and he 
 shall give the defendant a certificate in form 38 which, upon being after- 
 wards produced, shall, without further proof, be a bar to any subsequent 
 information or complaint for the same matter, against the same defendant. 
 
 From a perusal of form 37, it will be seen that it provides for 
 dismissal as well when both parties have appeared, and the matter 
 of the information or complaint has been duly considered by the 
 justice, as where the complainant or informant does not appear. 
 
 This matter was considered by the Supreme Court of New 
 Brunswick, when it was held by ALLEN, C.J., WELDON, WETMORE, 
 KING and FRASER, JJ., that the certificate of dismissal provided 
 for by sec. 43 of the Summary Convictions Act may be granted 
 as well where the informant neglects to appear and the complaint 
 is dismissed on that ground, as where he does appear and the in- 
 formation is dismissed on the merits. Held, also, ("WELDON and 
 WETMORE, JJ., dissenting), that the magistrate or other officers, 
 before whom an information for an offence against the Canada 
 Temperance Act is being heard, if a certificate of dismissal for 
 the same offence is relied upon as a bar to his proceeding, has a 
 right to inquire whether the previous prosecution was real and 
 bona fide or was instituted fraudulently and collusively. Ex parte 
 Phillips, 24 N". B. B. 119. But see Hall v. Pittingell, 18 C. C. C. 
 196, and notes at pp. 199-201. 
 
 '^._ _ 
 
 In cases of common assault the certificate of dismissal is given 
 under sec. 733 post and apparently is only effective when there has 
 been a hearing on the merits. See page 296 and cases there cited. 
 
 MINUTE OF ORDER TO BE SERVED. 
 
 731. Whenever, .by any Act or law. authority is given to commit a 
 person to prison, or to levy any sum upon his goods or chattels by distress, 
 for not obeying an order of a justice, the defendant shall be served with
 
 SERVICE OF MINUTE OF ORDER COMMON ASSAULT. 295 
 
 a copy of the minute of the order before any warrant of commitment or 
 of distress is issued in that behalf. 
 
 2. The order or minute shall not form any part of the warrant of 
 commitment or of distress. 
 
 The distress warrant may issue at any time after adjudication 
 and before the formal order has been drawn up, provided a minute 
 of the order hasi been served. Ratt v. Parkinson et al., 20 L. J. 
 M. C. 208. 
 
 It is to be noted that this section refers to orders and not con- 
 victions. No minute of a conviction need be served nor a copy of 
 the conviction. 
 
 The defendant is entitled to a copy of the conviction from the 
 convicting justice on application for the same. 
 
 'COMMON ASSAULT. 
 
 732. Whenever any person is charged with common assault, any 
 justice may summarily hear and determine the charge. 
 
 2. If the justice finds the assault complained of to have been accom- 
 panied by an attempt to commit some other indictable offence, or is of 
 opinion that the same is. from any other circumstance, a fit subject for 
 prosecution by indictment, he shall abstain from any adjudication there- 
 upon, and shall deal with the case in all respects in the same manner as 
 if he had no authority finally to hear and determine the same. 
 
 This section applies only to common assaults as distinguished 
 from aggravated assaults (sec. 296), and assaults occasioning 
 actual bodily harm (sec. 295). 
 
 An assault is defined by sec. 290 of the Code as follows : 
 
 DEFINITION OF ASSAULT. 
 
 290. An assault is the act of intentionally applying force to the 
 person of another, directly or indirectly, or attempting or threatening, by 
 any act or gesture, to apply force to the person of another, if the person 
 making the threat has, or causes the other to believe, upon reasonable 
 grounds, that he has present ability to effect his purpose, and in either 
 case, without the consent of the other or with such consent, if it is 
 obtained by fraud. 
 
 i 
 
 291. Every one who commits a common assault is guilty of an indict- 
 able offence and liable, if convicted upon an indictment, to one year's im- 
 prisonment, or to a fine not exceeding one hundred dollars, and on sum- 
 mary conviction to a fine not exceeding twenty dollars and costs, or to 
 two months' imprisonment, with or without hard labour. 
 
 By sec. 291 the punishment for a common assault on summary 
 conviction shall not exceed $20 and costs, or 2 months' impri- 
 sonment with or without hard labour. 
 
 And, as we have seen by the provisions of sec. 709 of the Code, 
 no justice shall hear and determine any case of assault or bat- 
 tery in which any question arises as to the title to any lands, &c.,
 
 296 DISMISSAL OF COMPLAINT OF ASSAULT. 
 
 or as to any bankruptcy or insolvency or any execution under the 
 process of any Court of justice. 
 
 Sub-section (2) of sec. 732 enables a justice to commit the 
 defendant for trial if he thinks the assault is a fit subject for in- 
 dictment, so that, as the case develops from the evidence, if the 
 justice realizes that the matter is of a serious nature, he can re- 
 fuse to adjudicate, but may proceed as upon a preliminary inquiry 
 and either commit the defendant for trial under sec. 690 or pro- 
 ceed under sec. 696 to take bail for his appearance for trial. 
 
 DISMISSAL OF COMPLAINT OF ASSAULT. 
 
 733. If the justice, upon the hearing of any case of assault or battery 
 upon the merits where the information is laid by or on behalf of the person 
 aggrieved, under the last preceding section, deems the offence not to be 
 proved, or finds the assault or battery to have been justified, or so trifling 
 as not to merit any punishment, he shall dismiss the complaint and shall 
 forthwith make out a certificate under his hand stating the fact of such 
 dismissal, and shall deliver such certificate to the person against whom the 
 complaint was preferred. 
 
 734. If the person against whom any such information has been 
 laid, by or on behalf of the person aggrieved, obtains such certificate, or, 
 having been convicted, pays the whole amount adjudged to be paid or 
 suffers the imprisonment, or imprisonment with hard labour, awarded, he 
 shall be released from all further or other proceedings, civil or criminal, 
 for the same cause. 
 
 There must have 'been a hearing of the case upon the merits, 
 that is, where 'both parties have appeared and. evidence has been 
 adduced upon behalf of all parties and a full inquiry made by the 
 justice. 
 
 Where a complainant gave notice to the defendant that he 
 would not attend before the magistrate or offer evidence in sup- 
 port of the charge of assault, and did not in fact attend or offer 
 evidence, but the defendant appeared and obtained from the 
 magistrate a certificate of dismissal under this section. 
 
 Held, that there had not been a hearing upon the merits and 
 the magistrate had no jurisdiction to grant the certificate, and 
 that the latter was therefore no bar to an action in which the 
 validity of the certificate might be inquired into. Reed v. Nutt, 
 24 Q. B. D. 669. But see Vwighton v. Bradshaw, 9 C. B. N. S. 
 103, 30 L. J. C. P. 93, a decision to the contrary, but upon a 
 statute, which was afterwards amended by adding the words 
 '* upon the merits " after the word " hearing." 
 
 The provisions of these sections are intra vires of the Parlia- 
 ment of Canada. Flick v. Brisbin, 26 0. E. 423.
 
 DISMISSAL OF COMPLAINT OF ASSAULT. 297 
 
 A charge of " shooting and wounding with intent to do griev- 
 ous bodily harm " came on before two justices of the peace for 
 preliminary hearing. The information was laid by a peace offi- 
 cer, and the person aggrieved attended the hearing, having been 
 subpoenaed, and gave evidence. Of their own motion the justices 
 changed the charge to one of common assault and convicted and 
 fined the accused accordingly. Held, that the justices had no 
 right to alter the charge to one of common assault and their 
 certificate of conviction and payment of the fine was a nullity 
 and no bar under sec. 866 (now 734) of the Code, to an action by 
 the person aggrieved to recover damages. Miller v. Lea, 25 A. 
 R. 42S. 
 
 The crime of assault may be committed though the party 
 assaulted may have consented to fight. R. v. Coney, (1882) 8 
 Q. B. D. 534, followed. R. v. Buchanan, (1898) 12 M. R. 190. 
 
 The granting of the certificate is a ministerial act consequent 
 on the dismissal. The application for it need not be made in the 
 presence, of the other party and it may be made at any time, the 
 word " forthwith " in the statute meaning forthwith on an appli- 
 cation for it, and not forthwith on the dismissal of the informa- 
 tion. Hancock v. Somes, 1 E. & E. 795 ; Costar v. Hetherington, 
 1 E. & E. 802. 
 
 A certificate of dismissal of a charge of assault is a bar to an 
 indictment for unlawful wounding where the transaction is the 
 same. R. v. Ellington, 31 L. J. M. 0. 14. 
 
 The objection of res judicata must be taken at the hearing 
 before the justice, and should not be reserved as a ground of 
 quashing the conviction after it is made. R. v. Herrington, 12 
 W. R, 420. 
 
 An entry in a justice's note book, when proved, is sufficient 
 proof of an adjudication. 
 
 Section 866 (now 734) bars civil action only where the charge 
 is triable summarily under sec. 864 (now 732), and does not 
 affect, or bar, where the charge is for an assault causing actual 
 bodily harm, an indictable offence. Nevills v. Bollard, (1897) 
 1 C.'C. C. 434; and see Larin v. Boyd, (1904) 11 C. C. C. 74, 
 and Clermont v. Lagace, (1897) 2 C. C. C. 1. Where a person 
 is charged with aggravated assault and consents to be tried sum- 
 marily by a magistrate and either pleads guilty, or is found 
 guilty, and is fined and pays his fine and the costs, the convic- 
 tion will be a bar to further criminal proceedings upon the same
 
 298 CONVICTION AS BAR TO ACTION FOR DAMAGES. 
 
 charge, but it will not relieve him from a civil action for dam- 
 ages. Clarice v. Rutherford, (1901) 5 C. O. C. 13. As to a 
 summary conviction being a bar to a civil action for damages 
 see Hebert v. Hebert, (1909) 16 C. C. C. 199. 
 
 The singular feature of the first case just quoted is that it seems 
 to have escaped the attention of the Judge that the justice of the 
 peace had no jurisdiction whatever in the premises to make the 
 conviction that he did, and the same was bad; the proceedings 
 being void by reason of the fact that the justice assumed and 
 acted as if he had the authority and jurisdiction of a police magis- 
 trate, his only authority in fact being to hold a preliminary hear- 
 ing and commit for trial if the evidence warranted it. 
 
 R. v. Brindly, (1906) 12 C. C. C. 170, reports the conflicting 
 opinions of GRAHAM, E.J., and RUSSELL, J., in habeas corpus pro- 
 ceedings as to whether, or not, a conviction for common assault 
 imposing a sentence of sixty days was good in law. As sec. 291 
 fixes the punishment at two months, it was contended upon be- 
 half of the accused that sixty days might mean more than two 
 months. 
 
 GRAHAM, E. J., said : " There is in my opinion no reasonable 
 possibility of the sentence exceeding the statutory period, and 
 therefore no ground for discharging her." He refused the order 
 asked for. 
 
 The application was renewed before EUSSELL, J., who said: 
 " If the conviction may so operate as to detain the prisoner in 
 gaol for a longer period than she would be detained if the jus- 
 tice had inserted ' two months ' as the law directs, then it seems 
 to me it must be a bad conviction. Prisoner's counsel has pointed 
 out several ways in which this may happen." No one appeared 
 in opposition to the motion, and ETTSSELL, -J., made the order 
 absolute discharging the prisoner. 
 
 This decision indicates how necessary it is for justices io 
 follow explicitly the wording of the statute when awarding pun- 
 ishment. When the statute provides for two months' imprison- 
 ment it means that period: it does not mean, or state, sixty 
 days, and justices should govern themselves accordingly. 
 
 See R. v. Gavin, 1 C. C. C. 59, and other cases at p. 287. 
 
 COSTS ON CONVICTION OR ORDER. 
 
 735. In every case of a summary conviction, or of an order made by 
 a justice, such justice may, in his discretion, award and order in and by 
 the conviction or order that the defendant shall pay to the prosecutor or 
 complainant such costs as to the said justice seem reasonable in that
 
 COSTS ON CONVICTION OR ORDER. 299 
 
 behalf, and not inconsistent with the fees established by law to be taken on 
 proceedings had by and before justices. 
 
 736. Whenever the justice, instead of convicting or making an order, 
 dismisses the information or complaint, he may, in his discretion, in and 
 by his order of dismissal, award and order that the prosecutor or com- 
 plainant shall pay to the defendant such costs as to the said justice seem 
 reasonable and consistent with law. 
 
 " Laws which impose penalties are subject to a strict construc- 
 tion, and the punishment and all its incidents must be men- 
 tioned in clear and unambiguous language; they must be estab- 
 lished by positive enactment, and cannot be gathered from im- 
 plication and still less by conjecture. Statutes which give costs 
 in penal proceedings are likewise to be construed strictly, inas- 
 much as such costs are an increment of the penalty. In laws 
 imposing penalties and allowing costs in penal proceedings the 
 rule is that the construction most beneficial to the offenders must 
 be adopted." WURTELE, J., at p. 123, in Ex parte Lon Kai Long, 
 (1897) 1 C. C. C. 120. 
 
 In the above case the defendant, along with others of his 
 countrymen, was convicted under a by-law of the City of Mon- 
 treal requiring public laundries to take out licenses. The defend- 
 ant was fined $40 with $2 costs, and in default two months' 
 imprisonment, " unless the tax and costs and the charges for con- 
 veying him to gaol should be sooner paid." The City charter 
 and the by-law did not contain any enactment providing for the 
 costs and charges for conveyance to gaol. Consequently the war- 
 rant of commitment was held bad and irregular and quashed. 
 Ibid. 
 
 A warrant of commitment in default of a fine for smuggling 
 under the Customs Act was held invalid because the amount 
 of the expenses of conveying the defendant to gaol was not fixed 
 in that instrument. R. v. McDonald, (1898) 2 C. C. C. 504. 
 
 The making up of the costs is a ministerial act and does not 
 go to the jurisdiction. If the magistrate in making up the costs 
 has not acted &on-a fide he is liable to a criminal information; 
 or if, with no dishonest intention, he has taken too much for 
 costs, he may be made to refund the excess, but his conviction is 
 good. Ex parte Howard, (1893) 32 N. B. E. 237, followed in Ex 
 parte Rayworth, (1896) 34 N". B. E. 74, 2 C. C. C. 230. 
 
 A conviction directed that the defendant be imprisoned for a 
 term specified unless such fine and costs, &c., and the costs of 
 commitment were sooner paid. These words "costs of commit- 
 ment" are irregular and may be treated as surplusage, and the
 
 300 COSTS IX DISCRETION OF JUSTICE. 
 
 fact of their being included in the conviction will not invalidate 
 it. R. v. Doherty, (1899) 3 C. C. C. 505. 
 
 A warrant of commitment for non-payment of a penalty should 
 ascertain and set forth the costs of commitment and conveying 
 to gaol, if they have not been ascertained in the conviction. 
 OSLER, J.A., at p. 92, in R. v. Murdoch, (1900) 4 O. C. C. 82, 27 
 A. R. 443. 
 
 The costs of conveying the defendant to gaol, who had been 
 convicted for a third offence under the Nova Scotia Liquor Li- 
 cense Act, cannot be legally awarded against him. And, where the 
 amount of such costs is stated in the warrant of commitment, it is 
 improperly included and cannot be treated as surplusage, and the 
 warrant was held to be bad. R. v. Doherty, supra, distinguished . 
 Re J. W. King, (1901) 4 C. C. C. 426; and see R. v. Townsend 
 (No. 3), (1906) 11 C. C. C. 153. 
 
 A conviction is also open to objection on the ground of the 
 application of the penalty, if the award of the costs is to the justice 
 instead of to the informant. R. v. Roche, (1900) 32 0. R. 20, 4 
 C. C. C. 64; see R. v. Law Botu, (1903) 7 C. C. 0. 468. 
 
 If the conviction adjudges a pecuniary penalty and a distress 
 to realize the same, and in default of sufficient distress that de- 
 fendant be imprisoned, the costs of distress and of conveying the 
 defendant to gaol are not in the discretion of the justice, but must 
 be included in the formal conviction. R. v. Vantassel, (1894) 5 
 C. C. 0. 128 and 133, and see R. v. Beagan (No. 2), 6 C. C. C. 56. 
 
 The resolution of a municipal council to put an invalid convic- 
 tion in force, or to pay any costs of putting it in force, is ultra 
 vires. It transcends the statutory powers of any municipal coun- 
 cil to award funds for illegal purposes. BOYD, C., at p. 21, Gaul 
 v. Ellice, 6 C. C. C. 15. 
 
 By sec. 735 it is in the discretion of the justice to award costs. 
 The costs must be awarded by the conviction or order, that is 
 the amount must appear on the face of the conviction and must 
 agree with the amount stated in the minute of adjudication. 
 The costs awarded are to be such as to the justice seems reasonable 
 and must not be inconsistent with, that is, must not exceed, the 
 fees established by law to be taken on proceedings had by and be- 
 fore justices. 
 
 By sec. 770 the fees therein mentioned and no others shall 
 be and constitute the fees to be taken on proceedings before jus- 
 tices under this part.
 
 AWARDING IMPROPER COSTS. 301 
 
 As to excessive costs included in a conviction see R. v. Crow- 
 ley, 16 C. C. C. 373, where it was held that such inclusion is a good 
 ground for discharging the prisoner on habeas corpus from his 
 commitment under warrant following the conviction. 
 
 But, in R. v. Morris, 16 C. C. C. 1, R. v. Smith, 16 C. C. C. 
 425, and R. v. Mitchell, 19 C. 0. C. 113, it was held that the Court 
 should not discharge the prisoner on the sole ground that unau- 
 thorized costs had been included in the warrant, but should re- 
 mand him for a sufficient time to have the erroneous judgment cor- 
 rected. 
 
 Unless therefore the Provincial Act relating to summary con- 
 victions, or some special Act governing the matter in hand, other- 
 wise provides, no justice can charge other or larger fees than those 
 enumerated in the tariff in sec. 770, or the tariffs set out in the 
 Provincial Acts. See R. v. Laird, (1889) 1 Terr. L. R. 179. 
 
 In that case a justices' order dismissing an information ordered 
 the informant to pay as costs a sum which included items for 
 " rent of hall," " counsel fee," " compensation for wages " and 
 " railway fare." Held, that none of these items could legally be 
 charged as costs, and that therefore the order was bad so far as it 
 awarded any costs. 
 
 It was also held that the Court could not amend the order by 
 deducting the illegal items; though it could amend by striking 
 out in toto all that part of the order relating to costs. 
 
 And see also R. v. Elliott, 12 0. R. 524; R. v. Tebo, 1 Terr. L. 
 R. 196 ; and Re Billy, 6 M. R. 472. 
 
 In R. v. Berrigan, 17 C. C. C. 329, TOWNSHEND, J., refused to 
 discharge a prisoner detained under a warrant of commitment on 
 non-payment of fine and costs for the inclusion of so large a sum 
 as $25 for costs of conveying to gaol, and left the prisoner to his 
 civil remedy if the fees were excessive. 
 
 The Code tariff does not apply under provincial law unless ex- 
 pressly thereby made applicable. R. v. Excel!, 20 0. R, 633. 
 
 The awarding of costs to the owner of two dogs, the informa- 
 tion having been laid by his wife, instead of to the informant, 
 is a mere irregularity which is cured by sec. 1124 of the Code. 
 Ex parte Grey, (1906) 12 C. C. C. 481. 
 
 Section 1124 provides that no conviction or order made by any 
 justice, and no warrant for enforcing the same, shall, on being 
 removed by certiorari, be held invalid for any irregularity, in- 
 formality or insufficiency therein, if the Court or Judge before
 
 302 COSTS OF CONVEYING PRISONER TO GAOL. 
 
 which or whom the question is raised, upon perusal of the deposi- 
 tions, is satisfied that an offence of the nature described in the con- 
 viction, etc., has been committed, etc. 
 
 See also sec. 754 of the Code in case of an appeal taken under 
 the provisions of sec. 749. 
 
 Where excessive costs are included in a summary conviction 
 the Court on certiorari has power under sec. 1124 to amend the 
 conviction by reducing the costs to the proper items. R. v. Mor- 
 ris/ supra, and see also R. v. Code, 13 C. C. C. 372, and cases cited 
 at p. 301, ante. 
 
 It is not now necessary to fix and state in the conviction the 
 costs and charges of conveying the defendant to gaol in default of 
 payment of the fine enforced. White v. Leak, 18 C. C. C. 337. 
 
 It is questionable whether it is necessary now to state the 
 amount of such costs and charges in the commitment, as form 
 41 differs from Form F. F. F., in the original Code of 1892. 
 
 In Form F. F. F., after the words, " and costs and charges of 
 conveying him to the said common gaol," followed the words, 
 " amounting to the further sum of ." 
 
 These words "amounting to the further sum of ," are 
 
 omitted from Form 41, and it reads " unless the said several sums 
 and the costs and charges of the commitment and of the con- 
 veying of the said A.B. to the said common gaol are sooner 
 paid unto you, etc." See R. v. Code, (1908) 13 C. C. C. 372, 
 when the question was raised but left undecided, also Re HosTdns, 
 21 C. C. C. 435. 
 
 However this may be, some authoritative statement from the 
 justice as to the amount " of the costs and charges of the commit- 
 ment and of the conveying of the accused to the gaol," will have 
 to be conveyed to the gaoler in order that he may know the amount 
 required to be paid by the accused before he can release him. It is 
 suggested that, if the justice who issues the warrant possesses the 
 necessary information as to these costs and charges, to enable him 
 to do so, he should endorse the amount upon the warrant and 
 authenticate such endorsement by his signature. Or, if the jus- 
 tice is not in a position to compute the amount of such costs and 
 charges, then perhaps it would be sufficient to instruct the con- 
 stable to whom he delivers the warrant to make such endorsement 
 when he hands the warrant to the gaoler. 
 
 In R. v. McDonald, 16 C. C. C. 121, on objection to the war- 
 rant that it did not shew the amount of such costs, the Judge or- 
 dered the prisoner to be detained until the magistrate could send
 
 COSTS OF CONVEYANCE TO GAOL. 303 
 
 in a new warrant fixing the amount, and this case was followed 
 in Re Leblanc, 22 C. C. C. 208. 
 
 This omission in Form 41, and other forms of warrants of 
 commitment, was no doubt made advisedly, as in a great many 
 cases justices living some distance from the gaol to which the 
 accused has been committed would have to guess as to the actual 
 amount of such costs and charges. 
 
 By item 5 in the Tariff, sec. 770, the constable is entitled to 
 mileage taking prisoner to gaol " exclusive of the disbursements 
 necessarily expended in his conveyance." How could a justice 
 know in advance, so as to insert the true amount in the warrant 
 of commitment, what these disbursements would be? The con- 
 stable is the only one who can know since he is the person who 
 will make the disbursements. It is therefore presumably contem- 
 plated by the change in the forms of commitment that the prac- 
 tice to be followed hereafter will be for the constable by endorse- 
 ment on the warrant, or otherwise, to state to the gaoler what 
 these " costs and charges " will be. It is better for the constable 
 to endorse them on the warrant as there is then a record of them 
 easily found. 
 
 A conviction adjudging the defendant to pay a sum of costs 
 without saying to whom the costs are to be paid is void under this 
 section. The conviction should order the costs to be paid to the 
 complainant. E. v. MaJbey, 37 IT. C. R, 248. 
 
 " As the License Act does not fix a tariff of costs, the justices 
 could allow such costs as they considered reasonable. There was 
 jurisdiction to order costs to be paid and the objection in the 
 rule that the sum awarded for costs is excessive and unwarranted 
 by law cannot be entertained." BAIN, J., at p. 494, in R. v. 
 Starlcey, (1891) 7 M. R. 489; citing R. v. Sanderson, 12 0. R. 178, 
 and R. v. Brown, 16 0. R. 41. 
 
 COSTS ON DISMISSAL. 
 
 Where the prosecutor, or complainant, is ordered to pay the 
 defendant's costs as provided by sec. 736, the justice, on default 
 of payment of the same, may issue a warrant of distress on the 
 goods and chattels of the prosecutor, or complainant, in Form 45, 
 for the amount of such costs, and in default of distress a warrant 
 of commitment, in Form 46, may issue. See sec. 742, post. The 
 term of imprisonment shall not exceed one month.
 
 304: RECOVERY OF COSTS ENFORCING CONVICTION. 
 
 RECOVERY OF COSTS. 
 
 737. The sums so allowed for costs shall, in all cases, be specified in 
 the conviction or order, or order of dismissal, and the same shall be 
 recoverable in the same manner and under the same warrants as any 
 penalty, adjudged to be paid by the conviction or order, is to be recovered. 
 
 738. Whenever there is no such penalty to be recovered, such costs 
 shall be recoverable by distress and sale of the goods and chattels of the 
 party and, in default of distress, by imprisonment, with or without hard 
 labour, for any term not exceeding one month. 
 
 The costs need not be set out in detail item by item, only 
 the aggregate amount. The costs that shall be specified do not 
 include costs of conveying the accused to gaol. The words used 
 in the section are " the sums so allowed for costs ;" these sums so 
 allowed are the costs awarded under the powers conferred by sec. 
 735. Costs of the commitment and of the conveying of the de- 
 fendant to gaol are governed by sec. 739 (2) post. 
 
 "I think that in this sec. 870 (now 738) the words 'such 
 penalty' refer to the previous section, 'penalty adjudged to be 
 paid/ also that the words ' to be recovered,' apply rather to a 
 pecuniary penalty than to a penalty of imprisonment." GRAHAM, 
 E.J., at p. 9, in R. v. Johnston (No. 1), (1906) 11 C. C. C. 6. 
 
 WHAT THE JUSTICE MAY ADJUDGE. 
 
 739. Whenever a conviction adjudges a pecuniary penalty or com- 
 pensation to be paid, or an order requires the payment of a sum of money, 
 whether the Act or law authorizing such conviction or order does or does 
 not provide a mode of raising or levying the penalty, compensation or sum 
 of money, or of enforcing the payment thereof, the justice by his convic- 
 tion or order, after adjudging payment of such penalty, <x>mpensation or 
 sum of money, with or without costs, may order and adjudge, 
 
 (a) that, in default of payment thereof forthwith, or within a limited 
 time, such penalty, compensation or sum of money and costs, if 
 the conviction or order is made with costs, shall be levied by distress 
 and sale of the goods and chattels of the defendant and, if sufficient 
 distress cannot be found, that the defendant be imprisoned in the 
 manner and for the time directed by the Act or law authorizing such 
 conviction or order or by this Act, or for any period not exceeding 
 three months, if the Act or law authorizing the conviction or order 
 does not specify imprisonment, or does not specify i>ny term of 
 imprisonment, unless such penalty, compensation or sum of money 
 and costs, if the conviction or order is made with costs, and 
 the costs and charges of the distress and of the commitment and 
 of the conveying of the defendant to gaol, are sooner paid ; or, 
 
 (6) that, in default of payment of the said penalty, compensation or 
 sum or money, and costs, if any, forthwith or within a limited time, 
 the defendant be imprisoned in the manner and for the time men- 
 tioned in the said Act or law, or for any period not exceeding three 
 months, if the Act or law authorizing the conviction or order does 
 not specify imprisonment, or does not specify any verm of imprison- 
 ment, unless the same and the costs and charges of the commitment 
 and of the conveying of the defendant to gaol are sooner paid.
 
 ISSUE OF WARRANT OF DISTRESS. 305 
 
 2. Whenever, under such Act or law, imprisonment with hard labour 
 may be ordered or adjudged in the first instance as part of the punishment 
 for the offence of the defendant, the imprisonment in default of distress 
 or of payment may be with hard labour. 
 
 This section was amended in 1909 by striking out the words 
 "distress and of the" in the 9th line of paragraph (6). 
 
 Paragraph (a) provides for distress and sale of the goods and 
 chattels of the defendant in default of his payment of the penalty, 
 compensation, or sum of money, or costs. If sufficient distress 
 cannot be found, then the defendant may be imprisoned. If the 
 Act or law authorizing the conviction, or order, does not specify 
 the imprisonment, then the imprisonment shall not exceed three 
 months. 
 
 Paragraph (&) provides for imprisonment in the first instance 
 in default of payment at the option of the justice. 
 
 See sec. 731, supra, as to requisites before issue of warrants of 
 commitment or distress for not obeying an order of a justice. 
 
 WARRANT OF DISTRESS. 
 
 The justice making the conviction, or order mentioned in para- 
 graph (a), may issue a warrant of distress, in Forms 39 or 40. 
 
 Form 39 is for distress upon a conviction for a penalty, and 
 Form 40 is for distress upon an order for the payment of money. 
 See sec. 741, post. 
 
 When it appears to the justice that the issuing of a distress 
 warrant would be ruinous to the defendant and his family, or 
 whenever it appears to the justice by the confession of the de- 
 fendant, or otherwise, that he has no goods or chattels whereon 
 to levy distress, then the justice instead of issuing a warrant of 
 distress may commit the defendant to gaol. See sec. 744, post. 
 
 A distress warrant can be backed, or endorsed, for execution 
 outside the jurisdiction of the justice. See sec. 743, post. 
 
 Upon looking at Forms 39 and 40, it will be seen that the 
 constable, or peace officer, who executes the warrant is commanded 
 in His Majesty's name forthwith to make distress of the goods 
 and chattels of the defendant. 
 
 The defendant is given a certain number of days specified in 
 the warrant after the making of the distress, to pay the amounts
 
 306 EXECUTION OF A DISTRESS WARRANT. 
 
 specified together with costs of distress, and if payment is not 
 made, then the goods and chattels distrained are to be sold and 
 the money arising from the sale is to be paid to the justice issuing 
 the warrant. 
 
 If no distress can be found, then that fact is to be certified 
 to the justice by the constable executing the warrant " to the end 
 that such proceedings may be had therein as to law appertain." 
 
 When distress is ordered, the warrant of distress must be exe- 
 cuted in its terms, and, if there is no distress found, then the offi- 
 cer executing the warrant must make his return to the justice 
 (Form 43) before a warrant of commitment can issue for the im- 
 prisonment of the defendant for want of distress. This warrant 
 is Form 44. 
 
 If the conviction orders distress, and, before a warrant of dis- 
 tress has been executed and a return thereto made, the justice 
 issues a warrant of commitment, his action in so doing and the 
 warrant, arrest and imprisonment are all illegal and will subject 
 the justice to an action for damages. 
 
 If, on the other hand, the magistrate satisfies himself that no 
 sufficient distress can be found, and the constable has done the 
 same and made his return accordingly, the magistrate will be 
 justified in issuing his warrant of commitment, and will not be 
 liable, although it subsequently appears that there was sufficient 
 distress. See R. v. Sanderson, (1886) 12 0. R. 178; Mo fat 
 v. Barnard, 24, U. C. R. 498, and McLellan v. McKinnon, 1 0. 
 R. 219. 
 
 The constable will be liable in damages if he makes an untrue 
 return, knowing it to be false. R. v. Sanderson, supra. 
 
 If the warrant of commitment for want of distress (Form 44) 
 omits to recite the fact of a distress warrant having issued and 
 of a return having been made of no sufficient distress, and that 
 no sufficient distress could be found, or that a distress was dis- 
 pensed with by the justice under sec. 744, it will be invalid. See 
 R. v. Skinner, (1905) 9 C. C. C. 558, and R. v. Rawding, (1903) 
 7 C. C. C. 436. 
 
 Where a commitment provided that the prisoner shall be de- 
 tained until the fine shall be paid to the keeper of the gaol, it was 
 held that the payment to the gaoler is justified by law, although 
 the conviction said that the fine is to be paid to the clerk of the 
 Recorders' Court. R. v. Bougie, (1899) 3 C. C. C. 487.
 
 DEGREES OF PUNISHMENT. 307 
 
 Under a warrant of distress, upon a convicton for an offence 
 against the second part of the Canada Temperance Act, the de- 
 fendant's property must be levied on, though it consists of in- 
 toxicating liquors only, and is in a county where the Act is in 
 force. Ex parte Fitzpatrick, (1893) 50. C. C. 191. 
 
 When both fine and imprisonment are authorized as punish- 
 ment for a statutory offence upon summary conviction, the magis- 
 trate has discretion to enforce either a fine alone, or imprison- 
 ment alone, or both, unless the particular statute specially pro- 
 vides otherwise. -Ex parte Rent, (1903) 7 C. C. C. 447. 
 
 DEGREES OP PUNISHMENT. 
 
 Section 102.8 of the Code provides as to the degrees of punish- 
 ment. Section 1029 places it in the discretion of the Court as to 
 the amount of fine or penalty. 
 
 These sections of the Code are as follows : 
 
 1028. Whenever it is provided that the offender shall be liable to 
 different degrees or kinds of punishment, the punishment to be inflicted 
 shall, subject to the limitations contained in the enactment, be in the dis- 
 cretion of the Court or tribunal before which the conviction takes place. 
 
 1029. Whenever a fine may be awarded or a penalty imposed for any 
 offence, the amount of such fine or penalty shall, within -such limits, if 
 any, as are prescribed in that behalf, be in the discretion of the Court or 
 person passing sentence or convicting, as the case may be. 
 
 When a tender was made to the gaoler at 7.50 p.m. of the 
 whole sum required to be paid by the warrant of commitment, 
 the prisoner was entitled to his release. The gaoler was not justi- 
 fied in refusing the tender, simply because there were prison rules 
 to the effect that no person would or could be released on pay- 
 ment of his fine after 5 o'clock in the afternoon, until the next 
 morning. R. v. Coldhan, (1907) 12 C. C. C. 283. 
 
 Under the Municipal Clauses Act, B. C., 1896, sec. 81, it is 
 not necessary to issue the distress thereby authorized before issu- 
 ing a commitment, but the latter course may be taken as an alter- 
 native procedure. R. v. Peterslcy, (1897) 1 C. C. C. 91. 
 
 Under the Inland Revenue Act of Canada, it is necessary that 
 the amount of the costs and charges of conveying to gaol should 
 be stated in the warrant and, this having been omitted from the 
 warrant, the prisoner was discharged on habeas corpus. R. V. 
 Corletl, (1899) 2 C. C. C. 499.
 
 308 IMPRISONMENT IN THE FIRST INSTANCE. 
 
 IMPRISONMENT IN THE FIRST INSTANCE. 
 
 By paragraph (&) of sec. 739, the justice may order that in 
 default of payment of the penalty, etc., forthwith, or within a 
 limited time, the defendant shall be imprisoned for the time men- 
 tioned in the Act, or law, or for any period not exceeding three 
 months if the Act or law authorizing the conviction or order does 
 not specify any term of imprisonment. 
 
 And by sub-sec. (2) whenever imprisonment with hard labour 
 may be ordered, or adjudged, in the first instance, as part of the 
 punishment, or imprisonment in default of distress, or of pay- 
 ment, it may be with hard labour. 
 
 This provision as to hard labour in default of distress applies 
 only where imprisonment with hard labour in the first instance 
 might have been imposed in addition to a fine with imprisonment 
 in default of distress or payment. See R. v. Clark (No. 1), 
 (1906) 12 0. C. 0. 17, and R. v. Mclver, (1903) 7 C. C. C. 183. 
 
 In R. v. Horion, (1897) 3 C. C. C. 84, it was held that a con- 
 viction, under Cr. Code, sec. 537, for unlawfully killing a dog, 
 which adjudged a penalty and costs and, in default of payment, 
 imprisonment with hard labour, was bad, because the section only 
 provides for hard labour when imprisonment without the option of 
 a fine is ordered, and there is no reference in it to imprisonment in 
 default of payment of a penalty imposed. 
 
 It is submitted, however, that that case is no longer the law, 
 as, since it was decided, sub-sec. 2 of sec. 739 was enacted in 1900 
 apparently for the very purpose of meeting just such a case. 
 
 Where the conviction imposes a longer term of imprisonment 
 than the statute permits, the Court, upon the return of a writ 
 of certiorari and a perusal of the depositions, has power to amend 
 the conviction by reducing the term of imprisonment to the statu- 
 tory limit. R. v. McKenzie, (1907) 12 C. 0. C. 435. See sec. 
 1124 of the Code, and R. v. Frizell, 22 C. C. C. 214. 
 
 As to imprisonment for too short a time, see Ex parte Daigle, 
 supra, p. 287. 
 
 The term of imprisonment in pursuance of any sentence shall, 
 unless otherwise directed in the sentence, commence on and from 
 the day of passing such sentence, but no time during which the 
 convict is out on bail shall be reckoned as part of the term of 
 imprisonment to which he is sentenced. Section 3 of the Prisons 
 and Reformatories Act, ch. 148, R. S. C. 1906. See R. v. Robin- 
 son, (1907) 12 C. C. C. 447.
 
 EELEASE PROM FURTHER PROCEEDINGS. 309 
 
 KELEASE FROM FURTHER PROCEEDINGS. 
 
 Any person convicted of any offence who has paid the sum 
 adjudged to be paid with costs, or has received a remission from 
 the Crown, or has suffered the imprisonment awarded, shall be re- 
 leased from all further, or other, criminal proceedings for the 
 same cause. This is provided for by sec. 1079 of the Code as 
 follows : 
 
 1079. When any person convicted of any offence has paid the sum 
 adjudged to be paid, together with costs, if any, under such conviction, or. 
 has received a remission thereof from the Grown, or has suffered the im- 
 prisonment awarded for non-payment thereof, or the imprisonment awarded 
 in the first instance, or has been discharged from his conviction by the 
 justice in any case in which such justice may discharge such person, he 
 shall be released from all further or other criminal proceedings for the 
 same cause. 
 
 t 
 
 1080. Nothing in this Part shall in any manner limit or affect His 
 Majesty's royal prerogative of mercy. 
 
 IMPRISONMENT IN ADDITION TO FINE. 
 
 740. Where, by virtue of an Act or law so authorizing, the justice, by 
 his conviction, adjudges against the defendant payment of a penalty or 
 compensation, and also imprisonment as punishment for an offence, he 
 may, if he thanks fit, order that the imprisonment in default of distress 
 or of payment, shall commence at the expiration of the imprisonment 
 awarded as a punishment for the offence. 
 
 2. The like proceeding may be had upon any conviction or order made 
 in accordance with this or the last preceding section as if the Act or law 
 authorizing the conviction or order had expressly provided for a conviction 
 or order in the terms permitted by this or the last preceding section. 
 
 The conviction adjudged the defendant to pay a fine and costs 
 forthwith and in default of payment imprisonment unless the 
 fine and costs were sooner paid. The defendant moved to quash 
 the conviction on the ground that the conviction should have 
 adjudged the fine and costs to be levied by distress and that, for 
 want of sufficient distress only, could the imprisonment be ad- 
 judged. Held, the convicting justice was fully empowered to 
 make the adjudication he did, and that the conviction was in good 
 form. Ex parte Casson, (1897) 2 C. C. C. 483, and Ex parte 
 Gorman et al, (1898)4 C. C. C. 305. 
 
 ENFORCING ADJUDICATION. 
 Warrants of Distress and Commitment. 
 
 741. The justice making the conviction or order mentioned in para- 
 graph (a) o section seven hundred and thirty-nine may issue a warrant 
 of distress in Form 39 or 40. as the case requires, and in the case of a
 
 310 ENFORCEMENT OF ADJUDICATION. 
 
 conviction or order under paragraph (6) of the said section, a warrant in 
 one of the Forms 41 or 42 may issue. 
 
 2. If a warrant of distress is issued and the constable or peace officer 
 charged with the execution thereof returns (Form 43) that he can find no 
 goods or chattels whereon to levy thereunder, the justice may issue a 
 warrant of commitment in Form 44. 
 
 A warrant of distress founded upon a defective order 01 con- 
 viction is bad. It should be warranted by the conviction. Day 
 v. King, 5 A. & E. 359 ; R. v. W yatt, 2 Ld. Raym. 1189. 
 
 In reading this section (741) one naturally concludes that 
 it is only the justice who made the conviction, or order, who 
 can issue the distress warrant or warrant of commitment. But 
 upon reference to sec. 708 it will be seen that: 
 
 (2) After a case has been heard and determined one justice 
 may issue all warrants of distress or commitment thereon, and 
 
 (3) It shall not be necessary for the justice who acts before 
 or after the hearing to be the justice, or one of the justices, by 
 whom the case is to be, or has been, heard or determined. 
 
 So that the warrant may be issued by the justice or justices 
 who made the conviction, or by any justice of the same county, or 
 place, having jurisdiction. And it may be issued by one justice. 
 
 A warrant of distress is to be executed by or under the direc- 
 tions of a constable or peace officer. 
 
 By sec. 2 (26) of the Code a peace officer includes amongst 
 others mentioned, " any police officer, police constable, bailiff, 
 constable, or other person employed for the preservation and main- 
 tenance of the public peace or for the service or execution of civil 
 process." 
 
 If the warrant be directed to all constables generally the law 
 is that no one in particular can execute it out of his own district 
 (unless it has been endorsed under sec. 743), it being directed 
 to him only by his name of office and no one having authority, 
 eo nomine, out of his district. 
 
 But, if the warrant is directed to a particular constable, or 
 peace officer, by name, he then may execute it anywhere within 
 the jurisdiction of the justice. R. v. Weir, 1 B. & C. 288. 
 
 If it is directed to more than one person in several or dis- 
 junctive terms it may be executed by any one of them, but if to two 
 or more jointly it seems they all must execute it. Paley, 8th ed., 
 336. 
 
 When the person named in the warrant employs others to assist 
 him he should be so near as to be acting in the execution of the 
 warrant at the time of its execution. 5 Burns' Justice, 1132.
 
 ENFORCEMENT OF ADJUDICATION. 
 
 The warrant may be executed at any time while it is in force, 
 that is until it is fully executed, and it is not avoided by reason 
 of the justice who signed it dying, or ceasing to hold office. The 
 constable should receive and remove the goods at once. He will 
 be held for trespass if he remains an unnecessarily long time on the 
 premises of the defendant. 
 
 A person against whose goods a distress warrant has issued 
 may pay, or tender, to the constable or peace officer having the 
 warrant the sums therein mentioned, together with the costs and 
 charges of distress up to the time of payment and thereupon the 
 peace officer shall cease to execute the warrant. See sec. 747, post. 
 
 Unless he can find sufficient goods upon which he can realize 
 by sale enough to satisfy in full the amount required to be levied 
 and costs of distress the constable should not execute the warrant. 
 If part only of the amount required is realized the defendant 
 cannot subsequently be committed for the balance. 
 
 If part of the money hasi been realized, or paid, it must be 
 repaid to the defendant before a warrant of commitment can be 
 issued. Sinden v. Broivn, 17 A. E. 173. 
 
 See further, as to warrants of commitment, the chapter on war- 
 rants and summons. 
 
 A warrant of commitment may be issued and executed before 
 drawing up the formal conviction : R. v. Dagenais, 18 C. C. C. 287. 
 
 Where the warrant of commitment in execution returned to a 
 writ of Habeas corpus states only a charge of the offence and not 
 a conviction therefor, the prisoner should be discharged. R. J . 
 Nelson, (1908) 15 C. C. C. 10. 
 
 A prisoner confined under an informal warrant of commit- 
 ment may be held in custody upon a proper warrant being subse- 
 quently issued: Laflewr v. Vallee, 19 C. C. C. 362. See also Re 
 Lellanc, 22 C. C. 0. 208. 
 
 A delay of 29 days in issuing the warrant of commitment to 
 imprisonment in default of payment of a fine, held not to affect 
 the validity of the warrant. R. v. McKinnon, 12 C. C. C. 414. 
 
 DISTRESS AND COMMITMENT FOR COSTS. 
 
 742. When any information or complaint is dismissed with costs, the 
 justice may issue a warrant of distress on the goods and chattels of the 
 prosecutor or complainant, in Form 45, for the amount of such costs ; and, 
 in default of distress, a warrant of commitment in Form 46 may issue_. 
 
 2. The term of imprisonment in such case shall not exceed one month.
 
 312 PROCEEDINGS PENDING EXECUTION OF DISTRESS WARRANT. 
 
 See cases cited under sees. 735 and 736, supra. 
 
 A warrant of distress can only be lawfully executed by the 
 person to whom it is directed and he cannot delegate his authority. 
 See Symonds v. Kurtz, 16 Cox 726. 
 
 By sec. 40 of the Code it is the duty of every one executing 
 any process, or warrant, to have it with him and to produce it if 
 required. See notes to previous sections. 
 
 PROCEEDINGS PENDING EXECUTION OF DISTRESS WARRANT. 
 
 745. Whenever a justice issues a warrant of distress as hereinbefore 
 provided, he may suffer the defendant to go at large, or verbally, or by a 
 written warrant in that behalf, may order the defendant to be kept and 
 detained in safe custody, until return has been made to the warrant of 
 distress, unless the defendant gives sufficient security, by recognizance or 
 otherwise, to the satisfaction of the justice, for his appearance, at the 
 time and place appointed for the return of the warrant of distress, before 
 him or before such other justice for the same territorial division as shall 
 then be there. 
 
 746. Whenever a justice, upon any information or complaint, adjudges 
 the defendant to be imprisoned, and the defendant is then in prison under- 
 going imprisonment upon conviction for any other offence, the warrant of 
 commitment for the subsequent offence shall be forthwith delivered to the 
 gaoler or other officer to whom it is directed. 
 
 2. The justice who issued the same, if he thinks fit. may award and 
 order therein that the imprisonment for the subsequent offence shall com- 
 mence at the expiration of the imprisonment to which the defendant was 
 previously sentenced. 
 
 By sec. 1055 it is provided that, when an offender is convicted 
 of more offences than one, before the same Court or person, at 
 the same sitting, or when any offender under sentence, or under- 
 going punishment for an offence, is convicted of any other offence, 
 the Court, or person, passing sentence may on the last conviction 
 direct that the sentences passed upon the offender for his several 
 offences shall take effect one after the other. 
 
 A prisoner convicted of two offences at the same sittings of the 
 Court was sentenced on each offence to three months in gaol with- 
 out anything being said as to the sentences being concurrent, or 
 otherwise : having served one term of three months he applied for 
 an order for habeas corpus the order was refused. Ex partc 
 Bishop, (1895) 1 C. C. C. 118. 
 
 It is submitted, however, that, notwithstanding this decision 
 which seems to stand alone, if the Court does not direct that the 
 sentences should " take effect one after the other," the presumption 
 is that they shoiild run concurrently. 
 
 Under a summary conviction the term of imprisonment of a 
 person not then in custody commences from the date of his ar-
 
 PAYMENT OF FINE AND COSTS. 313 
 
 rest under the warrant of commitment. E. v. McDonald, (1898) 
 6 C. C. C. 1, and see Ex parte Foulkes, 15 M. & W. 612, and 
 Henderson v. Preston, 21 Q. B. D. 362. 
 
 A separate commitment for each conviction should be issued, 
 one to commence -and take effect on the expiration of the other, if 
 so directed in the sentences. 
 
 By section 1056 of the Code, every one who is sentenced to 
 imprisonment for a term less than two years shall, if no other 
 place is expressly mentioned, he sentenced to imprisonment in the 
 common gaol of the district, county or place in which the sen- 
 tence is pronounced, or, if there is no common gaol there, then in 
 that common gaol which is nearest to such locality, or in some law- 
 ful prison or place of confinement, other than a penitentiary, in 
 which the sentence of imprisonment may he lawfully executed. 
 
 1056 (c) In the Provinces of Manitoba and British Columbia 
 any one sentenced to imprisonment for a term less than two years, 
 may be sentenced to imprisonment in any one of the common 
 gaols in those Provinces unless a special prison is prescribed by 
 law. 
 
 PAYMENT OF FINE AND COSTS. 
 
 747. Whenever a warrant of distress has issued against any person, 
 and such person pays or tenders to the peace officer having the execution 
 of the same, the sum or sums in the warrant mentioned, together with the 
 amount of the costs and charges of the distress up to the time of payment 
 or tender, the peace officer shall cease to execute the same. 
 
 2. Whenever any person is imprisoned for non-payment of any pen- 
 alty or other sum, he may pay or cause to be paid to the keeper of the 
 prison in which he is imprisoned, the <sum in the warrant of commitment 
 mentioned, together with the amount of the costs and charges therein also 
 mentioned, and the keeper shall receive the same, and shall thereupon dis- 
 charge the person, if he is in his custody for no other matter. 
 
 3. Such keeper shall forthwith pay over any moneys so received by 
 him to the justice who issued the warrant. 
 
 The defendant appeared before the justice, acknowledged that 
 he was guilty of the offences with which he was charged and 
 asked what fines he would be required to pay, and was told by 
 the justice what the fines and costs would amount to, and there- 
 upon paid tbe amount to the justice. There was no adjudica- 
 tion by the justice upon this occasion and nothing was done to 
 dispense with the attendance of the defendant before the justice 
 at the hour for which he was summoned to answer the charges 
 which had been made against him. The defendant attended be- 
 fore the justice at the hour for which he had been summoned. 
 The informations had in the meantime been amended, charging
 
 314 SURETIES TO KEEP THE PEACE. 
 
 the alleged infractions of the Act as second offences. The infor- 
 mations were read to the defendant as amended, and he pleaded 
 guilty. He pleaded guilty on a further charge and was fined on 
 both charges, and paid the fines and costs. The defendant moved 
 to quash the convictions on the ground, amongst others, that the 
 justice had adjudicated upon the charges when he accepted the 
 fine and costs from him before the hour of trial. Motion was 
 dismissed. R. v. Renaud, (1909) 15 C. C. C. 246. 
 
 SURETIES TO KEEP THE PEACE. 
 
 748. Whenever any person is charged before a justice with any 
 offence triable under this Part which, in the opinion of such justice, is 
 directly against the peace, and the justice, after hearing the case, is satis- 
 fied of the guilt of the accused, and that the offence was committed under 
 circumstances which render it probable that the person convicted will ,be 
 again guilty of the same or some other offence against the peace unless he 
 is bound over to good behaviour, such justice may, in addition to, or in 
 lieu of. any other sentence which may be imposed upon the accused, re- 
 quire him forthwith to enter into his own recognizance, or to give security 
 to keep the peace and be of good behaviour for any term not exceeding 
 twelve months. 
 
 2. Upon complaint by or on behalf of any person that, on account of 
 threats made by some other person or on any other account, he, the com- 
 plainant, is afraid that such other person will do him, his wife or child 
 some personal injury, or will burn or set fire to his property, the justice 
 before whom such complaint is made may, if he is satisfied that the com- 
 plainant has reasonable grounds for his fears, require such other person to 
 enter into his own recognizance, or to give security to keep the peace, and 
 to be of good behaviour, for a term not exceeding twelve months. 
 
 3. The provisions of this Part shall apply, so far as the same are 
 applicable, to proceedings under this section, and the complainant and de- 
 fendant and witnesses may be called and examined, and cross-examined, 
 and the complainant and defendant shall be subject to costs, as in the case 
 of any other complaint. 
 
 4. If any person so required to enter into his own recognizance, or 
 give security as aforesaid, refuses or neglects so to do. the same or any 
 other justice may order him to be imprisoned for any term not exceeding 
 twelve months. 
 
 5. The Forms 48, 49 and 50, with such variations and additions as 
 the circumstances may require, may be used in proceedings under this 
 section. 
 
 The provisions of sub-sec. 1 of this section relate only to 
 persons charged before a justice with any offence triable under this 
 Part, that is by way of summary conviction. 
 
 The power here given to a justice is to be invoked by him: 
 
 (a) When in his opinion the offence charged is directly against 
 the peace; and when after hearing the case he is satisfied of the 
 guilt of the accused ; and, 
 
 (6) That the offence was committed under circumstances 
 which render it probable that the person convicted will be again 
 guilty of the same, or some other offence against the peace, unless
 
 SURETIES TO KEEP THE PEACE. 315 
 
 he is bound over to good behaviour. A person may be bound over 
 in addition to any other punishment, or in lieu of it the accused 
 may be required forthwith to enter into his own recognizance or 
 to find sureties. The condition of the bond is that he will keep 
 the peace and be of good behaviour for any term not exceeding 
 twelve months. 
 
 It is well to notice here that the term must not exceed twelve 
 months, since under sec. 1058 of the Code a magistrate, and every 
 Court of criminal jurisdiction, may bind convicted persons over 
 in addition to any sentence for any term not exceeding two years. 
 The recognizance under sec. 1058 may be in Form 49 the same as 
 under sec. 748. Magistrates should bear this distinction in mind 
 as to the length of terms for which they can bind persons over. 
 When acting under this Part XV. the term must not exceed 
 twelve months, whilst under Part XVI. they may make the term 
 for any period not exceeding two years. How this difference will 
 apply is illustrated as follows: If a person is charged and con- 
 victed of common assault on summary conviction under this Part, 
 in addition, or in lieu of fine and imprisonment, the justice can 
 bind the person over to keep the peace for twelve months. Whereas 
 if the person had been charged before a magistrate under Part 
 XVI. with common assault as an indictable offence, which it is, 
 the magistrate could on conviction bind the person over to keep 
 the peace for two years. 
 
 COMPLAINT OF THREATS. 
 
 Sub-sec. (2) of sec. 748 deals with complaints of threats made 
 by some other person against the complainant, and on account of 
 such threats, or on any other account, he, the complainant, is afraid 
 such other person will do him, his wife or child, some personal 
 injury, or will burn, or set fire to, his property. In such a case 
 the justice may, if he is satisfied the complainant has reasonable 
 ground for his fears, require such other person to enter into his 
 own recognizance, or to give security, that is, furnish sureties, to 
 keep the peace and be of good behaviour for a term not exceeding 
 twelve months. 
 
 The information or complaint to be made in proceeding under 
 this sub-sec, is Form 48. The information may either be laid by 
 the complainant himself, or by his duly authorized agent, or 
 attorney. The form should be strictly followed except that there 
 may be " such variations and additions as the circumstances may 
 require." The form given would have to be varied if, for example,
 
 316 PROCEEDINGS ON COMPLAINT OF THREATS. 
 
 the complainant anticipated an injury to his wife or child or to 
 his property. The words used and the circumstances under which 
 they were used should be set out with exactitude. If the exact 
 words cannot be given, the effect of the same must be given; the 
 information reads, " threaten the said C. D. in the words or to the 
 effect following:" It is an important ingredient in the informa- 
 tion that the complaint is not made, nor the sureties asked, from 
 any malice or ill will, but merely for the preservation of the com- 
 plainant's person, &c., from injury. Upon the complaint being 
 made the justice may either issue a summons to the defendant, 
 or a warrant for his arrest, the same as in any other proceedings 
 under this Part. 
 
 (3) The complainant and defendant and witnesses may be 
 called and examined and cross-examined, and all proceedings had 
 as in other cases under this Part. And both the complainant and 
 defendant shall be subject to costs as in the case of any other com- 
 plaint. That is, if the Justice see fit to dismiss the complaint, he can 
 mulct the complainant in costs; if, on the other hancL.he is satis- 
 jied~that the complainant has reasonable ground for his fears and 
 the defendant is required to enter into a recognizance, the justice 
 can also require the defendant to pay the costs of the prosecution. 
 
 (4) If the person so required to enter into his own recogniz- 
 ance, or to give security, refuses or neglects so to do, the justice 
 may order him to be imprisoned for any term not exceeding twelve 
 months. 
 
 The form of commitment in default of sureties is Form 50. 
 This warrant recites the complaint and the adjudication and 
 default, and commands the apprehension of the defendant. And 
 the term of imprisonment is fixed; if the defendant finds sureties 
 to keep the peace in terms of the order he can be liberated, other- 
 wise he must serve the prescribed term. 
 
 On habeas corpus to release a prisoner so committed, the Court 
 will not hear affidavits to controvert the facts recited in the war- 
 rant. R. v. Dunn, 12 A. & E. 599; JR. v. Stanhope, 12 A. & E. 620. 
 
 The liberty of persons who have been imprisoned in default 
 of finding sureties must be made the subject of judicial inquiry 
 under the provisions of sec. 1059 of the Code, which is as fol- 
 lows : 
 
 PROCEEDINGS WHEN PERSON KEMAINS IN PRISON FOR Two 
 
 WEEKS. 
 
 1O59. Whenever any person who has been required to enter into a 
 recognizance with sureties, to keep the peace and be of good behaviour, or
 
 RELEASE OF PERSON BOUND OVER. 317 
 
 not to engage in any prize-fight, has, on account of his default therein, re- 
 mained imprisoned for two weeks, the sheriff, gaoler or warden shall give 
 notice, in writing, of the facts, to a Judge of a superior Court, or to a 
 Judge of the County Court of the county or district in which such gaol or 
 prison is situate, or, in the cities of Montreal and Quebec, to a Judge of 
 the Sessions of the Peace for the district, or, in the Northwest Territories, 
 to a stipendiary magistrate. 
 
 2. Such Judge or magistrate may order the discharge of such person, 
 thereupon or at a subsequent time, upon notice to the complainant or other- 
 wise, or may make such other order as he sees fit, respecting the number 
 of sureties, the sum in which they are to be bound and the length of time 
 for which such person may be bound. 
 
 The sheriff, &c., must give the prescribed notice after the de- 
 faulter has remained imprisoned for two weeks. The Judge may 
 order, that is, it is in his discretion to do so, the discharge of 
 such person, but after notice to the complainant. 
 
 It is necessary in the warrant of commitment (Form 50) to 
 specify the time of imprisonment. But after he has been im- 
 prisoned for two weeks the sheriff, gaoler or warden shall give 
 notice in writing, &c. This is an imperative duty cast upon these 
 officials. Power is given to the Judge or magistrate to practically 
 T^ 7 Jw the order of the committing magistrate, since he may order 
 J-.hfi person's discharge forthwith, ^or at a subsequent time, and 
 this_-with. or without, notice^ to the .complainant. 
 
 And he may make such order as he sees fit respecting the num- 
 ber of sureties, the sum in which they are to be bound, and the 
 length of time for which each person may be bound. It is virtu- 
 ally a trial de novo by way of appeal from the decision of the com- 
 mitting magistrate. 
 
 A warrant of commitment for default in finding sureties to 
 keep the peace must shew on its face that the complainant feared 
 bodily injury to himself or his wife or child, or injury to his 
 property from the defendant on account of his threat, and that 
 complaint was not made nor sureties required from any malice or 
 ill will, but merely for the preservation of his person from injury, 
 or as the case may be. In this case these essential ingredients 
 were omitted from the warrant; the same was held bad and pris- 
 oner discharged. R. v. McDonald, (1897) 2 C. C. C. 64. 
 
 Verbal threats made to burn the complainant's building are 
 not an indictable offence, but the person making such threats can 
 be proceeded against under sec. 959 (2), (now 748) (2) of the 
 Code to find sureties to keep the peace. Ex parte Welch, (1898) 
 2 C. C. C. 35. 
 
 A threat to burn or destroy any building, &c., made in writing 
 is an indictable offence. See sec. 516 of the Code.
 
 318 BINDING PERSONS OVER TO KEEP THE PEACE. 
 
 A warrant of commitment which omitted to state the amount 
 for which security should be given, or that the defendant had re- 
 fused or neglected to find sureties, was held illegal and invalid, 
 and the prisoner was discharged. Re John Doe, (1893) 3 C. C. 
 C. 370. 
 
 Where the prisoner was ordered to find sureties and to pay the 
 complainant's costs, and " if the said sum for costs were not paid 
 forthwith," the prisoner was adjudged to be imprisoned in gaol 
 for one month, unless the recognizance was sooner entered into 
 and the said sureties sooner found, and the said sum for costs 
 sooner paid, the prisoner, refusing to comply with the order, 
 was committed to gaol. Upon motion to discharge the prisoner 
 it was held that sees. 959 (3) (now 748) (3) and 870 (now 738) 
 gave the authority and procedure respectively for imposing and 
 collecting the costs in a case like the present, and that under the 
 last mentioned section the prisoner could be imprisoned for the 
 non-payment only in default of distress. The order in awarding 
 imprisonment without distress as a means of recovering these 
 costs was, therefore, bad as an excess of jurisdiction, and the 
 prisoner held thereunder was entitled to his discharge. R. v. 
 Power, (1902) 6 C. C. C. 378. 
 
 Where a stipendiary magistrate took a recognizance to keep 
 the peace in Form XXX. (now Form 49) without referring on 
 the face of the recognizance to the section of the Code under 
 which he was acting or otherwise shewing jurisdiction, it is to 
 be assumed that he was proceeding in his capacity of a justice of 
 the peace under section 959 (now 748) to which that form was 
 (then) alone applicable, and, the term exceeding twelve months, 
 the recognizance was held void. Re Sarah Smith's Bail, (1903) 
 6 C. C. C. 416. 
 
 Form 49 is no longer alone applicable to sec. 748, since by 
 sub-sec. (2) of sec. 1058, it is provided that "and such recogniz- 
 ance may be in Form 49." And by sub-sec. (5) of sec. 748, the 
 Forms 48, 49 and 50, with such variations and additions as the 
 circumstances may require, may be used in proceedings under this 
 section. No trouble can arise if justices take the precaution of 
 shewing their jurisdiction upon the face of the warrant and guide 
 themselves by the requirements of the different sections. 
 
 Justices should exercise due care and be satisfied that sufficient 
 grounds have been established for requiring sureties to keep the 
 peace, for if they make the order through error, or want of proper 
 consideration, although they have full jurisdiction in the premises,
 
 JUSTICES EXCEEDING THEIR JURISDICTION. 319 
 
 yet they may render themselves liable to an action for damages. 
 Fullarton v. Switzer, 13 U. C. R. 575. 
 
 It would seem that there is no appeal from an order made by 
 a justice under sub-sec. (2) of sec. 748. 
 
 Sub-section (3) provides that the provisions of this Part shall 
 apply, 50 far as the same are applicable, to proceedings under this 
 section. There is nothing in the section as to a right of appeal, 
 and, in the absence of such express enactment, the provisions of 
 sec. 749 relating to appeals will not apply. 
 
 That section, unless it is otherwise provided in any special Act, 
 applies only to, (a) a conviction, (b) or an order made by a justice 
 for the payment of money, (c) or dismissing an information or 
 complaint. As an order made by a justice under sub-sec. (2) 
 of 748 does not come within either of these classes, there is con- 
 sequently no appeal. R. v. Mitchell, (1908) 13 C. C. C. 344. 
 
 As to the remedy of a person remaining in confinement under 
 such an order, see sec. 1059, p. 317, supra. 
 
 See dictum of WALLACE, Oo.J., at p. 70, in R. v. Doyle, (1906) 
 12 C. C. C. 69, and R. v. Tregarthen, 5 B. & A. 678. 
 
 If any person against whom an order is made requiring him to 
 enter into his own recognizance, or give security, refuses, or 
 neglects, so to do, and he is imprisoned for his default, such 
 person has all the rights preserved to him that any one else has 
 who has been committed to gaol, and may apply on habeas corpus 
 and certiorari for his release. R. v. Dunn, 12 A. & E. 599. 
 
 To justify a magistrate in binding over a defendant, there 
 must be an act on his part which, if not unlawful in itself, would 
 produce as a natural consequence an unlawful act by other persons. 
 LORD ALVERSTONE, C.J., in Wise v. Denning, [1902] 1 K. B., 
 at pp. 175-6. 
 
 The defendant gave evidence that complainant had used 
 threatening language towards him. It was found as a fact by the 
 justices that there was a real danger of a breach of the peace on 
 the part of both parties, and they accordingly bound them both 
 over to keep the peace and be of good behaviour. The defendant 
 had not lodged any formal complaint under oath against the com- 
 plainant. The latter appealed and the Court held that the justices 
 had jurisdiction under the circumstances to make the order. R. 
 v. WilTcms, [1907] 2 K. B. 380.
 
 320 MANNER OF TAKING RECOGNIZANCE. 
 
 MANNER OF TAKING RECOGNIZANCE. 
 
 When the justice has fixed the amount in which the defend- 
 ant and the sureties (if any) are to be bound, the recognizance 
 may be entered into before any other justice and not necessarily 
 the justice making the order. The recognizance must be made to 
 the King, and it must contain the name, place of abode, and trade 
 or calling of both principal and sureties, and the sums in which 
 they are bound. It is sufficient to call the parties by their names 
 and to state the substance of the recognizance to them. The 
 parties need not sign, their verbal acknowledgment is sufficient. 
 After stating the substance of the recognizance to them, the usual 
 way is to say to the parties : " Are you content ?" and, upon their 
 giving their assent, the justice proceeds to sign the recognizance 
 himself, it being imperative that the justice taking a recognizance 
 should sign the same. 
 
 A recognizance is a matter of record presently so soon as it is 
 taken and acknowledged, although it be not made up. Dalt. 
 ch. 168. 
 
 If a man is bound by his recognizance to appear before a cer- 
 tain Court, and he fails to appear, the Court will not, even with 
 the consent of the Attorney-General, discharge his recognizance, 
 but may respite it until another time upon his application, if, in 
 the opinion of the Court, it is right so to do. R. v. Drummond, 11 
 Mod. 200. And in that case he will be bound to appear at such 
 enlarged time. But the Court will not discharge it or allow it to 
 be withdrawn unless they are satisfied that the condition of it has 
 been substantially complied with. See R. v. Paul, 6 C. & P. 323. 
 
 APPEAL FROM CONVICTIONS OR ORDERS. 
 
 749. Unless it is otherwise provided in any special Act under which 
 a conviction takes place or an order is made by a justice for the payment 
 of money or dismissing an information or complaint, any person who thinks 
 himself aggrieved by any such conviction or order or dismissal, the prose- 
 cutor or complainant, as well as the defendant, may appeal, 
 
 (c) In the province of Ontario, when the conviction adjudges imprison- 
 ment only, to the Court of General Sessions of the Peace ; and in 
 all other cases to the Division Court of the division of the county 
 in which the cause of the information or complaint arose ; 
 (6) in the province of Quebec, to the Court of King's Bench, Crown 
 side; 
 
 (c) in the provinces of Nova Scotia, New Brunswick and Manitoba, 
 to the County Court of the district or county where the cause of the 
 information or complaint arose ; 
 
 (d) in the province of British Columbia, to the County Court, at the 
 sitting thereof which shall be held nearest to the place where the 
 cause of the information or complaint arose ; 
 
 (e) in the province of Prince Edward Island, to the Supreme Court;
 
 APPEALS FROM CONVICTIONS OK ORDERS. 321 
 
 (/) in the province of Saskatchewan or the province of Alberta, to 
 the district Court at the sittings thereof which shall be held nearest 
 to the place where the cause of the information or complaint arose ; 
 
 (g) in the Northwest Territories, to a stipendiary magistrate; and, 
 
 (h) in the Yukon Territory, to a Judge of the Territorial Court. 
 
 2. In the case of the provinces of Saskatchewan and Alberta, and of 
 the Northwest Territories and the Yukon Territory, the Judge or stipen- 
 diary magistrate hearing any such appeal shall sit without a jury at the 
 place where the cause of the information or complaint arose, or at the 
 nearest place thereto where a Court is appointed to be held. 
 
 Sub-sec. 2 relating to appeals in the district of Nipissing was 
 repealed in 1908 by 7 & 8 Edw. VII. ch. 18. 
 
 The right of appeal is granted to any person who thinks him- 
 self aggrieved by any conviction, or order, or dismissal, and the 
 prosecutor, or complainant, as well as the defendant, may appeal. 
 And it matters not whether the conviction adjudges imprisonment, 
 or a penalty by way of fine or both. 
 
 If a statute gives a right of appeal to " a person who shall 
 think himself aggrieved/' these words mean a person who is im- 
 mediately aggrieved by the act done and not, to one who is con- 
 sequentially aggrieved. R. v. JJ. of Middlesex, 3 B. & A. 938. 
 
 And such an enactment only means to give an appeal to any 
 one who has legal ground for saying that he is aggrieved. Harrup 
 v. Bayley, 6 E. & B. 218, 25 L. J. M. C. 107. 
 
 If trustees are enabled by a local Act to sue or be sued in the 
 name of one of them, he may appeal under the words, " party 
 grieved," though not personally aggrieved, and notice of appeal 
 and recognizance may be given and entered into by him only. R. 
 v. JJ. Surrey, 5 A. & E, 701. 
 
 As to who is not a party aggrieved, see R. v. Edwards, 5 B. <fc 
 Ad. 407; R. v. Dewhurst, 5 B. & Ad. 405. 
 
 A corporation may be a " person aggrieved." Cortis v. Kent 
 Waterworks Co., 7 B. & C. 314. 
 
 On an appeal from a summary conviction, the Court will not 
 quash it upon consent, unless the conviction is shewn to be wrong. 
 R. v. McCabe, 18 C. C. C. 217. 
 
 Justices are not required to give any information to a party 
 of his right to appeal, and he is bound to know the law in this 
 respect, or else lose the benefit of it. 
 
 A person who has pleaded guilty and been convicted and fined; 
 has a right of appeal, notwithstanding his plea of guilty. So far 
 as the facts relating to his guilt or innocence are concerned, he is- 
 
 C.C.P. 21
 
 322 WHAT PARTIES MAY APPEAL. 
 
 not a person aggrieved within the meaning of sec. 879 (now 749). 
 He cannot, therefore, call on the prosecutor to produce evidence 
 of his guilt at the hearing of the appeal, but he may rely on any 
 valid legal objection to the conviction. Citing Harrup v. Bayly, 
 supra, R. v. Brook, (1902) 7 C. C. C. 216. 
 
 By paragraph (b) of sec. 749, the appeal in Quebec is to the 
 Court of King's Bench, Grown side. 
 
 Where an appeal was taken to the Court of Queen's Bench in 
 Quebec from a summary conviction for an offence against a pro- 
 vincial statute, it was held that the Court had no jurisdiction to 
 hear the appeal since appeals under sec. 879 (now 749) only 
 applied by virtue of sec. .840 (now 706) to offences, or matters, 
 over which the Parliament of Cknada has legislative authority. 
 Lecours v. Hurtiibise, (1899) 2 C. C. C. 521, and see Superior V. 
 City of Montreal, 3 C. C. C. 379. 
 
 Section 706 provides that, subject 'to any special provision 
 otherwise enacted with respect to such offence, act or matter, this 
 Part XV. shall apply to, (a) Every case in which any person com- 
 mits, or is suspected of having committed, any offence or act over 
 which the Parliament of Canada has legislative authority, etc., 
 and (b) Every case in which a complaint is made to any justice 
 in relation to any matter over which the Parliament of Canada 
 has legislative authority, -etc. 
 
 So that, in the absence of any provincial enactment making 
 Part XV. applicable to summary convictions for offences against 
 provincial Acts, no appeal will lie under sec. 749 from a summary 
 conviction for an offence against a provincial Act. 
 
 By paragraph (a), when appeals in Ontario are from convic- 
 tions adjudging imprisonment, the appeal lies only to the Court 
 of General Sessions of the Peace, and in all other cases to the 
 Division Court of the division in which the cause of complaint 
 arose. 
 
 In an appeal to the Court of General Sessions of the Peace in 
 Ontario, an appellant cannot demand a jury to try his appeal. 
 R. v. Milloy, (1900) 4 C. C. C. 116. 
 
 Appeals from summary convictions and the costs payable in 
 respect thereof are founded upon the statute law; and the pro- 
 visions of the law regarding them in England and in this country 
 are essentially different. 
 
 Where an appeal is heard and determined against the appellant 
 by a Court of Quarter Sessions, the formal order need not be 
 drawn up at the same sittings, as the Court of General Sessions
 
 WHAT PARTIES MAY APPEAR. 323 
 
 of the Peace is a continuing Court. The respondent's costs may 
 be taxed at the next sittings and a formal order drawn up and the 
 costs included therein nunc pro tune, if necessary. ARMOUR, C.J., 
 at p. 460, in Bothwell v. Burnside, (1900) 4 C. . C. 450. 
 
 Where a prosecution is instituted by a police officer in his 
 own name as informant for an offence against a municipal by-law, 
 such officer is a party to all proceedings, both before the magis- 
 trate and on appeal, and the municipality should not be named as 
 a party to the appeal, nor could costs be awarded in its favour. 
 Ibid. 
 
 Where the agent of a society laid an information, and after 
 hearing the ease was dismissed, the society gave notice of appeal 
 in its own name. Held, that the informant himself was alone 
 entitled to appeal, and that the society had no locus standi to pre- 
 sent the appeal, as the society was not a party to the proceedings 
 before the justices. Canadian Society v. Lauzon, (1899) 4 C. C. 
 C. 354. 
 
 In appeals from convictions under the Nova Scotia Liquor 
 License Act, the effect of the statute is to require the County Court 
 Judge to try the case de navo, and to make such conclusions upoii 
 the evidence as he thinks just, whether new evidence has been 
 taken before him or not. R. v. McNutt, (1900) 4 C. . C. 392. 
 Followed in R. v. Baird, (1908) 13 C. C. C. 240. 
 
 An appeal lies from a conviction made under the Fisheries 
 Act of Canada, notwithstanding the special appeal to the Minister 
 of Marine and Fisheries given by the Act. This special appeal 
 may be made and taken after the disposal of the appeal to the 
 County Court, R. v. Townsend et al., (1901) 5 C. C. C. 143. 
 
 An appeal from a summary conviction under the Nova Scotia 
 Lord's Day Act, a pre-Confederation measure, lies only under the 
 provisions of the Criminal Code and not under the Summary Con- 
 victions Act, E. S. N. S. 1900, ch. 161. R. v. Bellefontaine, 22 
 C. C. C. 140. 
 
 In an appeal from a summary conviction, the decision of the 
 County Court is final and conclusive, both as to law and fact, 
 and after such decision the appellant is bound by the result of it, 
 and a superior Court has no jurisdiction to entertain an applica- 
 tion for a writ of habeas corpus. R. v. Beamish, (1901) 5 C. C. 
 C. 388. 
 
 The decision of the County Court on an appeal from a sum- 
 mary conviction, being res adjudicata between the parties, is a 
 bar to the application for a " stated case." And. where the County
 
 324: WAIVER OF RIGHT OF APPEAL. 
 
 Court has affirmed the conviction, it is not open to the accused 
 to have "a case stated" to a superior Court. R. v. Townshend 
 (No. 2), (1902) 6 C. C. C. 519. 
 
 In a hearing upon the merits of a writ of certiorari, it was 
 held that the petitioner in taking his writ of certiorari had waived 
 hie right of appeal. Denault v. Robida, (1894) 8 C. C. C. 501. 
 
 In an appeal from a conviction under the B. C. Summary 
 Convictions Act the conviction in question was bad on its face, 
 and on the hearing of the appeal a motion was made to quash it. 
 It was argued for the respondents that under this Act the Judge 
 must hear evidence and try the case de novo in any event. 
 
 After hearing argument on this point the County Court Judge 
 gave judgment allowing the appeal and quashed the conviction 
 with costs. Upon an application for mandamus to compel the 
 Judge to hear evidence and determine the appeal on the merits, 
 it was held by IRVING, J., on the authority of R. v. JJ. of Mid- 
 dlesex, 46 L. J. M. C. 225, 2 Q. B. D. 516, that) the Court had 
 no power to interfere by mandamus, as the Judge had heard argu- 
 ment on the question, and given a decision on the legal merit.-?, 
 and the Court had no right to decide or inquire whether such de- 
 cision was right or wrong, and a mandamus was refused with 
 costs. Strang v. Gellatiy, (1904) 8 C. C. C. 17. See also R. v. 
 Koogo, 19 C. C. C. 56. 
 
 " The defendants lost their appeal through the fault and de- 
 sign of the convicting justice, and I think that this Court, having 
 the case before them, and being the supervisor of all inferior 
 Courts, and the only tribunal before which persons wronged, as 
 the defendants have been, can seek a remedy, and, as the circum- 
 stances are altogether exceptional and take the case out of the 
 principle of the cases which decided that a certiorari will not be 
 granted where an appeal has been given, should decide that the 
 rule be made absolute to quash the conviction, and that the de- 
 fendants are not deprived of their right to seek a remedy by 
 certiorari merely because they had taken some action for an ap- 
 peal, unless the right is taken away by statute, which, as I 
 have already said, is not the case where the Court below had no 
 jurisdiction. The facts and circumstances of this case clearly 
 bring it within the rule that a certiorari will go in cases where 
 another remedy is given, in exceptional cases." HANXIXGTOX, 
 J., at p. 458, in Ex parte Cowan, (1904) 9 C. C. C. 454. 
 
 Where an appeal against a summary conviction was quashed for 
 irregularity due to the fault of the magistrate in returning the
 
 STATUTORY REQUIREMENTS TO BE FOLLOWED. 325 
 
 deposit, the Court granted a writ of certiorari to remove the con- 
 viction notwithstanding the abortive appeal and the conviction was 
 quashed. R. v. Alford, (1902) 10 C. C. C. 61. 
 
 All requirements of a statute providing for taking and per- 
 fecting an appeal are deemed jurisdictional and must be strictly 
 complied with; want of jurisdiction which appears on the face 
 of the proceedings cannot be waived, and the Court, upon want 
 of jurisdiction so appearing, must dismiss the appeal whether 
 the point is raised by counsel for the respondent or not. MAC- 
 GILLIVRAY, Co, J., at p. 407, in R. v. Doliver Mining Co., (1906) 
 10 C. C. C. 405. 
 
 The Court has jurisdiction to award costs to the respondent 
 on dismissing an appeal for want of jurisdiction through a de- 
 fect in the notice of appeal. Ibid. 
 
 When on appeal from a summary conviction the County Court 
 Judge affirmed the conviction, but reduced the sentence and im- 
 posed the new sentence in the absence of the prisoner, it was held 
 that, the adjudication of imprisonment having been made in the 
 absence of the prisoner, it was irregular and that he must be dis- 
 charged. R. v. Johnston, (No. 2), (1906) 11 C. C. C. 10. 
 
 The above decision was disapproved in Johnston v. Robertson, 
 (1908) 13 C. C. 0. 452, a decision of the same Court. 
 
 If the statute creates an offence with an exemption or excep- 
 tion, the statement of which is necessary to properly charge the of- 
 fence, and such exemption, or exception, is not negatived in the in- 
 formation, sec. 717 of the Code does not apply to cast upon the 
 accused the onus of proving that he is within the exception. In 
 such a case the appellate Court cannot amend the information 
 when the evidence before the magistrate fails to disclose the of- 
 fence of which, by the amendment of the conviction, it is sought' 
 to declare the defendant guilty. " In the present case the inform- 
 ation did not negative the exception to sec. 54 of the Liquor 
 License Act protecting sales to vendees holding requisitions for 
 the purchase of liquor for medicinal purposes. Therefore the pro- 
 vison of the Criminal Code casting upon the defendant the onus 
 of proving affirmatively that he was within this exception, did 
 not apply. The burden was upon the prosecutor to adduce evi- 
 dence that the sale in respect of which the charge is laid was not 
 within the exception of sec. 54. There was no evidence whatever 
 before the magistrate on this point." AXGT.IX, J., at pp. 101, 
 102, in R. v. Boomer, (1907) 13 C. C. C. 98.
 
 326 OBJECTIONS TO CONVICTIONS. 
 
 It should be noted, however, that section 767, under which 
 this case was decided, was amended in 1909, and probably this 
 case is no longer law. See that new section 717 at page 253, 
 supra. 
 
 For diverse views and divided opinions upon the question as 
 to the proper Court to which an appeal is to be made in Nova 
 Scotia under sees. 749 and 750 of the Code, likewise as to the 
 computation of time which should intervene between the con- 
 viction and the sittings of the Court hearing the appeal, see R. v. 
 Johnston, (1908) 13 C. C. C. 179. 
 
 The difficulties presented by the decision in R. v. Johnston 
 have been settled by the amendments made in 1909 to sec. 750 (a). 
 See p. 328, infra. 
 
 The justice having imposed the maximum fine on a first 
 conviction upon a plea of guilty, upon appeal the fine was re- 
 duced, it being held that upon an appeal from a summary con- 
 viction the Court is the absolute judge of facts as well as law, and 
 that it is the duty of the Court to deal with the case de novo on 
 its merits, following R. v. McNutt, 4 C. C. C. 392 ; R. v. Baird, 
 (190S) 13 C. C. C. 240. 
 
 It was objected on an appeal from a summary conviction, (1) 
 that the conviction did not shew that the liquor license by-law 
 was in force at the time of the alleged offence; (2) that the con- 
 viction must set out the particular acts relied on; (3) that the 
 conviction should include a specific amount as to costs of convey- 
 ing to gaol in default of sufficient distress. Held, all to be clearly 
 matters of form inasmuch as they can be removed by apt amend- 
 ments. Conviction was affirmed. R. v. Sing Kee, (1909) 14 C. 
 C. C. 420. 
 
 A defendant gave notice of appeal from a summary conviction 
 and subsequently, obtained an order for certiorari, also an order 
 nisi to quash the conviction. After these orders were obtained 
 the defendant served notice of his grounds of appeal. Held, 
 that under the circumstances the Court would not interfere by 
 certiorari as the appeal proceedings were pending. Order nisi 
 discharged. Ex parte McCorquindale, (1908) 15 C. C. C. 187. 
 
 The finding of a magistrate upon a question of fact within 
 his jurisdiction will not be reviewed by the Court upon certiornri. 
 but the defendant's remedy if any is by appeal. R. v. Urquhart, 
 (1899) 4 C. C. C. 256. 
 
 Section 4 of the Quebec Sunday Observance Act, which enacts 
 that fines for its violation may be recovered before certain magis-
 
 PROCEDURE ON APPEAL. 327 
 
 trates, or two justices of the peace, " under the provisions of Part 
 XV. of the Criminal Code," has not the effect of embodying the 
 appeal provisions of Part XV. in the provincial statute. R. v. 
 Ouimet, (1908) 14 C. C. C. 136. 
 
 On an appeal from a summary conviction there is no author- 
 ity for a reference being made by the appellate Court to a super- 
 ior Court of criminal jurisdiction of a point of law arising on the 
 appeal, even if the question is whether or not the appeal was 
 lodged in due form. R. v. Mischo.wsTcy , (1909) 15 C. C. C. 364. 
 
 Where the right of appeal from a summary conviction has been 
 taken away by the statute the Court will not on certiorari con- 
 sider the weight of evidence, or revise the decision of the magis- 
 trate as to guilt, unless there was a complete absence of evidence 
 as to some essential element of the offence. R. v. Dubuc, (1909) 
 15 C. C. C. 353. 
 
 PROCEDURE ON APPEAL. 
 
 " 75O. Unless it is otherwise provided in the special Act, 
 
 " (a) if a conviction or order is made more than fourteen days before 
 a sittings of a Court to which an appeal is given, such appeal shall 
 be made to that sittings ; but if the conviction or order is made 
 within fourteen days of a sittings, the appeal shall be made to the 
 second sittings next after such conviction or order : Provided that 
 in the province of Nova Scotia the appeal shall be to a sittings of 
 the Court in the county where the cause of the information or com- 
 plaint arose ; in the one case to the sittings next after and in the 
 other to the second sittings after the conviction or order ; 
 
 " (b) the appellant shall give notice of his intention to appeal by 
 filing in the office of the clerk of the Court appealed to. a notice 
 in writing setting forth with reasonable certainty the conviction or 
 order appealed against, and the Court appealed to. within ten davs 
 after the conviction or order complained of. and by serving the 
 respondent and the justice Avho tried the case each with a copy of 
 such notice ; 
 
 " O) the appellant, if the appeal is from a conviction or order ad- 
 judging imprisonment, shall either remain in custody until the hold- 
 ing of the Court to which the appeal is given, or shall within the 
 time limited for filing a notice of intention to appeal, enter into a 
 recognizance in Form 51 with two sufficient sureties before a County 
 Judge, clerk of the peace or justice for the county in which such con- 
 viction or order has been made, conditioned personally to appear at 
 the said Court and try such appeal, and to abide the judgment of 
 the Court thereupon, and to pay such costs as are awarded by the 
 Court ; or if the appeal is from a conviction or order whereby a 
 penalty or sum of money is adjudged to be paid, the appellant shall 
 within the time limited for filing the notice of intention to appeal, 
 in cases in which imprisonment upon default of payment is directed, 
 either remain in custody until the holding of the Court to which the 
 appeal is given, or enter into a recognizance in Form 51 with two 
 sufficient sureties as hereinbefore set out, or deposit with the justice 
 making the conviction or order an amount sufficient to cover the 
 sum so adjudged to be paid, together with such further amount as 
 euch justice deems sufficient to cover the costs of the appeal ; and, 
 in cases in which imprisonment in default of payment is not directed.
 
 328 ABUSE OF EIGHT OF APPEAL. 
 
 deposit with such justice au amount sufficient to cover the sum so 
 adjudged to be paid, together with such further amount as such 
 justice deems sufficient to cover the costs of the appeal; and upon 
 such recognizance being entered into or deposit made, the justice 
 before whom such recognizance is entered; into or deposit made shall 
 liberate such person if in custody ; 
 
 " (d) in case of an appeal from the order of a justice pursuant to 
 section six hundred and thirty-seven for the restoration of gold or 
 gold-bearing quartz, or silver or silver ore, the appellant shall give 
 security by recognizance to the value of the said property to prose- 
 cute his appeal at the proper sittings of the Court, and to pay such 
 costs as are awarded against him." 
 
 The above is section 750 as amended in 1909 and 1913. The 
 chief changes relate to the provisions in paragraph (a) as to ap- 
 peals in Xova Scotia, and in paragraph (6) as to the service of 
 the notice. 
 
 The outstanding defect in these provisions for appeal is that 
 through want of proper restriction the right is frequently abused 
 by a class of people who represent the worst element in any 
 country. 
 
 Reference is here made to appeals from convictions for vag- 
 rancy coming under paragraphs (i), (/), (&), and (I) of sec. 238 
 of the Code. 
 
 Both men and women convicted for the offences covered by 
 these paragraphs, who can raise the necessary money, employ a 
 lawyer who gives the notice of appeal required and then applies 
 to any justice, generally a justice who is an entire stranger to the 
 facts of the case, or the character of the person who has been 
 convicted, and this justice accepts the bail offered often without 
 any affidavit of justification (since it is in his discretion whether 
 he will require it or not) ; the recognizances are entered into, or 
 deposit made, and in due course the justice issues his order for 
 the liberation of the accused. This order is delivered to the gaoler 
 and presto the prisoner is released. And it is an open boast 
 among this class of people that any one who has the money and 
 can hire a lawyer can get out of gaol. After their release, they 
 walk the streets of the city, and, as they term it, ' give the laugh 
 to the police.' 
 
 When the hearing of the appeal comes on the appellant fre- 
 quently is not present and cannot be found, having departed hence ; 
 the bail are found to be men of straw, and the ends of justice 
 have been defeated. 
 
 All this reflects upon our administration of justice and lowers 
 the respect for the law in the very class of people it is most 
 necessarv to control.
 
 NOTICE OP APPEAL AND SERVICE THEREOF. 329 
 
 No desire is expressed that this class of people should be de- 
 prived of their right of appeal on the contrary 'but what is sug- 
 gested and earnestly advocated is that the procedure relating to 
 their appeals should be so amended and regulated as to provide 
 against the farcical proceedings that frequently obtain as the law 
 now stands. 
 
 A simple remedy would be a provision that no appeals should 
 be allowed from convictions under sec. 238, unless leave therefor 
 has been first applied for and granted by a Judge of the County 
 Court, and after notice of such application had been served upon 
 a representative of the Crown, and after the Judge has read the 
 evidence taken before the convicting justice. Also that, if leave 
 is granted, bail should be fixed by the Judge and an order made 
 providing that the sureties offered should justify. 
 
 NOTICE OF APPEAL. 
 
 The notice of intention to appeal must be filed in the office 
 of the clerk of the Court appealed to. A copy must be served 
 upon both the respondent, and the justice who tried the case. 
 Since the amendment of 1913 it is no longer sufficient to serve 
 one or the other. 
 
 Where two justices sitting together are required for a convic- 
 tion by the particular statute, a notice of appeal from the con- 
 viction must be served on both justices, or the appeal will be 
 quashed. R. v. Edelston, 17 C. C. C. 155. 
 
 The notice must be in writing and must set forth with rea- 
 sonable certainty the conviction, or order, appealed against and 
 the Court appealed to, that is the name of the Court and the 
 date of its sittings at which the appeal is to be heard, and should 
 be addressed to the prosecutor and to the justice or justices who 
 tried the case. 
 
 The notice must be served and filed within ten days after 
 the conviction or order complained of, and the Court appealed to 
 has no jurisdiction to extend the time for service of the notice. 
 R. v. White, 19 C. C. C. 156. 
 
 If the last of the ten days falls on Sunday, the notice may be 
 given on the following day by virtue of sec. 31 (h) of the Inter- 
 pretation Act, E. S. C. 190'6, c. 6. R. v. Trottier, 22 C. C. C. 102. 
 The notice is too late, though mailed to the clerk of the Court in 
 time for him to receive it on the tenth day at his post office, if, 
 by reason of his own office being officially closed on that day, he
 
 330 NOTICE OF APPEAL AND SERVICE THEREOF. 
 
 did not in fact receive it until the next day. R. v. Green, 22 C. 
 C. C. 155. 
 
 It is no longer necessary to serve a notice setting forth the 
 grounds of appeal. 
 
 A notice of appeal from a summary conviction, not having 
 been addressed to any person, was held insufficient to give juris- 
 diction, and declared invalid, and appeal quashed accordingly. 
 Cragg v. Lamarsh, (1898) 4 C. C. C. 246; and see Keohan v. 
 Cool', 1 N. W. T. Rep. 125. 
 
 Proof of service on the justice must be strict. PahJcala v. 
 Hannulcsala, 20 C. C. C. 247. 
 
 The form of notice N.N.N. that appeared in the schedule of 
 the Code before the revision in 1906 has been omitted. So that 
 any persons preparing a notice will have to exercise their own 
 skill and judgment and follow closely the requirements of this 
 section. Vide " contents of notice," post: 
 
 If notice of appeal has not been given in time and the recog- 
 nizance entered into, or other matter requred to be done before 
 the appellant can proceed with his appeal, the objection could 
 probably be taken at any time, for it would shew that the Court 
 had no jurisdiction to entertain the appeal. R. v. Crouch, 35 IT. 
 C. R. 433-9. 
 
 Notice had been duly given and admission thereof made by 
 the respondent and the recognizance had been properly entered 
 into and filed with the clerk of the peace. At the hearing counsel 
 for the respondent objected that there had been no proof of the 
 recognizance and afterwards continued the case, not pressing his 
 objection, and only renewing it at the close of the case. It was 
 held that this constituted an admission that the necessary recog- 
 nizance had been entered into. Ibid.; and see R. v. Essery, 7 P. 
 R. 290. 
 
 The notice was neither addressed to, nor served upon the 
 prosecutor, but was addressed to and served upon one of the jus- 
 tices who signed the conviction, and by affidavit it appeared that 
 when the notice was so served this justice was verballyi informed 
 that it was for the prosecutor. Held, notwithstanding the fact 
 that the justice, Avhen served, was told it was for the respondent 
 (prosecutor), that this did not cure the defect. Hostetter v. 
 Thomas, (1899) 5 C. C. C. 10. 
 
 The meaning of appealing is giving notice to your adversary 
 of your intention to appeal, per JESSEL, M. R., in Ex parte Saf- 
 fery, 5 Ch. D. 365, approved in appeal in Christopher v. Croll, 16
 
 UPON WHOM NOTICE MUST BE SERVED. 331 
 
 Q. B. D. 66 (C.A.), where the Court held an appeal was 
 " brought " when notice of appeal was served. 
 
 The appellant gave notice of appeal to the Supreme Court by 
 way of stated case; that appeal coming on it was dismissed for 
 non-compliance with statutory conditions precedent. The appel- 
 lant then gave notice of appeal to the County Judge. Held, in 
 view of the provisions of sec. 96 of the Act, ch. 176, R. S. B. C. 
 1897, that the appellant, having stated a case for the opinion of 
 the Supreme Court, had thereby abandoned his right of appeal to 
 the County Court. Appeal quashed. Coolcsley v. Toomaten Oota, 
 (1901) 5 C. C. C. 26. 
 
 A notice of appeal under the B. C. Summary Con. Act is suffi- 
 cient if addressed to the convicting magistrate only, and served 
 on him only. The notice need not recite that the appellant is 
 a " person aggrieved " by the decision appealed from. R. v. Jor- 
 dan, (1902) 5 C. C. C. 438. 
 
 The section of the B. C. Act upon which that case was de- 
 cided, 71, provides that the appellant shall give to the respondent, 
 or to the convicting justice^ for him, a notice in writing, &c., &c. 
 
 In Ex parte Doherty, (1885) 25 N. B. R, 38, the appeal was 
 taken under the provisions of Statute of Canada, 33 Vic., ch. 27. 
 This Act provided for the notice being given to the justice for 
 the prosecutor. In his judgment ALLEN, C. J., said : " I think 
 the applicant did all that was necessary to perfect his right of ap- 
 peal when he gave the notice of appeal to the police magistrate, 
 and entered into the recognizance required by the Act 33 Vic., ch. 
 27. The second sub-section of that Act directs that a person 
 intending to appeal from a conviction, or order, of a justice 
 shall give to the prosecutor, or complainant, or to the convicting 
 justice, or one of the convicting justices for him, a notice in writ- 
 ing of such appeal within four days, &c. . . . The notice of 
 appeal in this case was given to the police magistrate and it cor- 
 rectly describes the conviction against which the party intended 
 to appeal. But it is contended that the notice should have stated 
 on its face that it was given to him for the prosecutor. I do 
 not think this was necessary. The Act having stated that the 
 notice might be given to the convicting justice for the prosecutor, 
 the justice must be taken to know for what purpose it was given 
 to him and the form of the notice prescribed by the Act allows of 
 such variations as are necessary to meet such case." 
 
 In R. v. Jordan, supra, MR. JUSTICE IRVING said (p. 441) : 
 " The decision Ex parte Doherty seems to me right and more con-
 
 332 CONTENTS OF THE NOTICE. 
 
 sistent with the views expressed by the late MR. JUSTICE GWYNNE 
 in R. v. Nichol et al., (1896) 40 IT. C. K. at p. 79: 'We must 
 read 'these notices not with a critical eye, but liberally uf res 
 mag is valeat, and so as to uphold, not defeat, the right of appeal 
 given to parties summarily convicted,' and I think, between the 
 conflicting decisions, I ought to be guided by the decision of the 
 Supreme Court of New Brunswick in this matter, particularly so, 
 when so eminent a Judge as the late MR. JUSTICE KING assented 
 to the decision." 
 
 In R. v. Jordan, the notice was addressed only to the convict- 
 ing magistrate, and not to the prosecutor, but it was served upon 
 both the magistrate and upon the solicitors for the informant or 
 prosecutor. 
 
 In Re Doherty the notice was directed to and served only 
 upon the magistrate. 
 
 The importance of these decisions is somewhat lessened by 
 the fact of the change in the section to what it now reads, already 
 noted, namely, that the provision which occasioned so much dif- 
 ference of opinion is no longer a part of the Code, and that under 
 the section as it now stands the notice must be served upon both 
 the prosecutor and the justice who tried the case. Nothing is said 
 as to whom it is to be directed. However, it is well in this, as in 
 other matters of procedure, to exercise a little common sense and 
 the suggestion is made that the notice should be addressed to both 
 the prosecutor and the justice, as both have to be served. 
 
 The office of the notice is to inform the respondent and the 
 justice that a particular conviction is appealed against and care 
 should be taken that they cannot be misled on this subject, and 
 therefore the names of the appellants, the intent to appeal, the 
 sessions to which the appeal is to be made, as well as the nature 
 of the conviction itself, should be contained in the notice. Notices 
 will not be critically construed, and if they substantially give the 
 respondents the requisite information they will, apart from statu- 
 tory provision, be held sufficient. R. v. JJ. Denbighshire, 9 
 Dowl. P. C. 509; R. v. JJ. Oxfordshire, 4 Q. E. 177; R. v. West 
 HougUon, 5 Q. B. 300. 
 
 All the statutory conditions must be accurately fulfilled. R. 
 v. Ah Yin (No. 1), (1902) 6 C. C. C. 63. Pdey, 8th Ed., p. 382. 
 
 Held, that notice which had been served upon two of the jus- 
 tices who had taken the information, issued the summons, heard 
 the evidence and signed the conviction, the other J. P. having
 
 OBJECTIONS TO NOTICE SERVICE OF NOTICE. 333 
 
 signed the conviction at a subsequent time, was sufficient, follow- 
 ing Ex parte Doherty, supra; R. v. Davitt, (1904) 7 C. C. C. 514. 
 
 Notice objected to on the ground that it did not state that 
 appeal was being made to " the next sittings " of the Judge in 
 Battleford but only gave notice that the appellants would appeal 
 to the Judge sitting at Battleford. Held, that the notice did not 
 comply with the statute and was insufficient. R. v. Brimacombe, 
 (1905) 10 C. C. C. 168. 
 
 A notice of appeal in typewriting is a notice in writing within 
 the meaning of the section (880), now (750). And a notice of 
 appeal is not invalid because it is not signed. R. v. Bryson, 
 (1903) 10 C. C. C. 398, following R. v. Nichol, 40 U. C. R. 46. 
 
 There being no form of notice now and nothing being said 
 in sec. 750 (b) as to the notice requiring to be signed, presum- 
 ably no signature is required: however, it is better to be on the 
 safe side and see that all notices are signed. 
 
 It is the appellant who is to give the notice; the appellant may 
 be "any person who thinks; himself aggrieved by such conviction 
 or order, or dismissal" (sec. 749); it may therefore not be the 
 prosecutor himself who appeals but some one else " who is ag- 
 grieved." It is well then, if for no other reason than the pur- 
 poses of identification, that the appellant should sign the notice, 
 either personally or by his solicitor. 
 
 The respondent could not be found and a copy of the notice 
 of appeal was sent by registered mail to the respondent addressed 
 to Edmonton, and another addressed to Winnipeg, and a copy 
 served on his advocate and another on a grown person at the last 
 known place of abode of the respondent, which was a boarding 
 house. 
 
 Held, that such service was not authorized by sec. 750 of the 
 Code, and that personal service is intended by that section, and 
 leave to allow the substitutional service as above was refused. 
 Olsen v. Cameron, (1907) 12 C. C. C. 193. But see R. v. Trot- 
 tier, 22 C. C. C. 102, where substituted service on a person in 
 charge of the office of the person to be served was allowed. 
 
 CONTENTS or THE NOTICE. 
 
 As sec. 750 now reads, the essential ingredients of the notice 
 are: (1) it must shew the intention to appeal; (2) and set forth 
 with reasonable certainty the conviction or order appealed against; 
 and (3) the Court appealed to and to what sittings thereof.
 
 334 STATUTORY PROVISIONS TO BE STRICTLY FOLLOWED. 
 
 Where the notice stated an intention to appeal to the borough 
 sessions (the appeal properly being to the county sessions), it was 
 held that these words might be rejected as surplusage if they did 
 not mislead. R. v. JJ. Buckinghamshire, 4 E. & B. 260; R. v. 
 Liverpool, 15 Q. B. 1070. 
 
 If acted upon then the notice could not be taken as good for 
 the county sessions afterwards. R. v. JJ. Salop, 24 L. J. M. C. 
 14, 4 E. & B. 257. 
 
 All the statutory provisions must be accurately fulfilled so 
 that, where a statute gives an appeal to a person by any particular 
 description, the notice should bring the appellant within it; thus, 
 when a statute gives a right of appeal to a party aggrieved on 
 giving notice in writing, the notice should state that the party 
 appealing is aggrieved by the conviction. R. v. JJ. West Rid- 
 ing Yorkshire, 7 B. & C. 678; R. v. Blackawton, 10 B. & C. 792. 
 In R. v. Jordan, 5 C. C. . 438, on appeal under the B. C. 
 Summary Convictions Act, MR. JUSTICE IRVING held that it was 
 not necessary that the notice should state that the appellant was 
 the " person aggrieved," the Act and the form in the schedule not 
 requiring that to be alleged. 
 
 If giving notice be prevented by the act of God, as by the 
 death of the person to whom it was to be given, notice will be dis- 
 pensed with. R. v. JJ. Leicestershire, 15 Q. B. 88. 
 
 Where full notice of an appeal has been given and there is 
 no countermand of the notice, the sessions are justified in refus- 
 ing to respite the appeal on the ground of the absence of a wit- 
 ness, unless the appellant pays the costs of the day. R. v. /./. 
 Monmouthshire, 1 B. & Ad. 895. 
 
 Criminal proceedings do not lapse by the death of the in- 
 formant. R. v. Truelove, 5 Q. B. D. 336. 
 
 If the appellant has brought on his appeal for hearing and it 
 has been dismissed, though only for an informality, he cannot give 
 a second notice of appeal, even within the time originally allowed 
 for appealing. R. v. JJ. West Riding of Yorkshire, 3 T. R. 776. 
 In the same case, BULLEN, J., at p. 779, said that, if the appellant 
 had withdrawn his first notice without going on with his appeal, 
 he might then have given a second notice, if within the six 
 months. 
 
 RECOGNIZANCE OR DEPOSIT. 
 
 If the appeal is from a conviction, or order, adjudging im- 
 prisonment the appellant shall either remain in custody until the
 
 RECOGNIZANCE OR DEPOSIT. 335 
 
 holding of the Court to which the appeal is given, or he shall, 
 within the time limited for filing a notice of intention to appeal, 
 (that is within ten days after the conviction or order has been 
 made), enter into a recognizance in Form 51 with two sufficient 
 sureties before a County Judge, clerk of the peace, or justice for 
 the county in which such conviction or order has been made. 
 
 The requirements as to the recognizance are: (a) it must 
 be entered into within ten days after the conviction or order com- 
 plained of; (&) it must be entered into by the appellant with 
 two sufficient} sureties; (c) and can be entered inlto before either 
 a County Judge, a clerk of the peace, or a justice of the peace for 
 the county in which the conviction or order has been made; (d) 
 it must be in Form 51; (e) the condition shall be that the appel- 
 lant will personally appear at the Court appealed to and try such 
 appeal and will abide the judgment of the Court thereupon and 
 will pay such costs as are awarded by the Court. 
 
 It will not suffice that the recognizance be entered into in 
 Court on the day for hearing the appeal, it must be entered into 
 and filed before the sittings of the Court to which the appeal 
 is made. See Kent v. Olds, 7 TJ. C. L. J. 21 ; Re Myers & Won- 
 nacot, 23 U. C. E. 611: Bestwick v. Bell, 1 Terr. L. E. 193; R. 
 v. Crouch, 35 U. C. E. 433, and R. v. King, (1900) 4 C. C. C. 128. 
 
 The sureties must be sufficient sureties. This is a matter 
 for the justice taking the recognizance to fully satisfy himself 
 upon and he should be very particular in this regard. It is not 
 necessaryi that the sureties should make affidavits of justification, 
 unless the justice chooses to require it, the matter of sufficiency 
 being left entirely to the justice. See Cragg v. Lemarsh, supra, 
 4 C. C. C. 246. 
 
 When it is remembered that, upon the recognizance being en- 
 tered into, the justice shall liberate such person if in custody, it 
 will be recognized as most important that the sureties should be 
 men of substance and freeholders. 
 
 The recognizance must be in Form 51, since it is not stated 
 that it may be in that form or one like it, the words of the section 
 tteing imperative: "Shall . . . enter into a recognizance in 
 Form 51." In looking at Form 51 it will be seen that a form 
 is given of a notice of the recognizance to the appellant, and 
 his sureties. There is nothing in sec. 750 or elsewhere in the Code 
 making it necessary for the respondent to serve this notice, and 
 although it is made part of Form 51 the respondent could not be 
 prejudiced if the appellant neglects to add it to the recognizance.
 
 336 APPELLANT MUST APPEAR IN PERSON. 
 
 It is not necessary that the recognizance should be entered 
 into before the justice who made the conviction or order; any 
 justice having jurisdiction, or County Judge, or clerk of the 
 peace may take it. 
 
 The condition of the recognizance is that the appellant will 
 " personally appear " and try the appeal and abide by the judg- 
 ment of the Court upon such appeal, and pay such costs as are 
 by the Court awarded. 
 
 Held, that the omission of the word " personally " makes the 
 recognizance defective. Ex parte Sprague, (1903) 8 C. C. C. 109. 
 
 The omission, by a clerical error, whereby the amount of the 
 appellant's personal obligation was not filled in in the recogniz- 
 ance, held not fatal to it, when the amount of the sureties' obliga- 
 tion was filled in. R. v. Koogo, 19 C. C. C. 56. 
 
 The necessity for the condition that the appellant shall appear 
 personally will be manifest to one as proper, when it is recol- 
 lected that the appellant has been liberated from custody till 
 his appeal is heard against a conviction, or order, awarding him 
 imprisonment; if his appeal is dismissed and he is not personally 
 present in Court, how could the conviction or order appealed 
 against be enforced against him ? It is therefore requisite that the 
 appellant should attend in person and be present in Court during 
 the whole time the appeal is being heard ; it will not suffice that he 
 is represented by counsel. 
 
 The appeal and the giving of a recognizance under this sec- 
 tion operate as a suspension, or stay of proceedings, for the 
 enforcement of the penalties imposed by the conviction, either by 
 way of imprisonment, or pecuniary penalty. Simington \. Col- 
 lourne, (1900) 4 C. C. C, 367; E. v. Trottler, 22 C. C. C. 102. 
 
 Where several defendants appealed from a summary convic- 
 tion and the recognizance entered into was that of the appellants 
 and only one surety. Held insufficient and appeal quashed. R. v. 
 Joseph et al., (1900) 4 C. C. C. 126. 
 
 An appeal is not a general, or common law, right. It is an 
 exceptional provision enacted by a statute, and to be availed of 
 the conditions imposed by the statute must be strictly complied 
 with. They and all of them are conditions precedent. A notice 
 that the persons convicted intend to appeal is not an appeal. 
 It is an idle formality if not accompanied either by the surrender 
 of the accused into custody, or by their entering into recognizance 
 with two sufficient sureties that they will try the appeal and
 
 APPEAL WHEN PENALTY IMPOSED. 337 
 
 abide by the judgment of the Court therein and pay such costs as 
 may be awarded against them. HALL, J., ibid., p. 127. As to 
 giving notice of appeal being an appeal, see Ex parte Saffery, 
 supra, and R. v. Lynch, 12 0. K. at p. 378. 
 
 The condition in the recognizance entered into was to "per- 
 sonally appear at the next general sessions and enter an appeal 
 against, etc./' the words " and try " being omitted after the 
 word " enter," without which it was urged the chairman of the 
 general sessions had no authority to hear the appeal. Held, that, 
 the appeal having been entered according to the condition in the 
 recognizance, and the appellant having appeared to prosecute the 
 appeal, the sessions could not refuse to hear the appeal. R. v. 
 Tucker, (1905) 10 C. C. C. 217. 
 
 APPEAL WHERE PENALTY IMPOSED. 
 Deposit in lieu of recognizance. 
 
 If the appeal is from a conviction, or order, adjudging a pen- 
 alty, or sum of money, to-be paid and in default imprisonment, 
 the appellant shall within the same time limit, viz., within ten 
 days after the conviction or order, is made, either remain in cus- 
 tody or enter into a recognizance in Form 51 with two sufficient 
 sureties, the same as where the imprisonment alone was adjudged 
 and as hereinbefore set forth, or deposit with the justice making 
 the conviction or order an amount sufficient to cover the sum ad- 
 judged to be paid together with such further amount as such jus- 
 tice deems sufficient to cover the costs of appeal. 
 
 In cases in which imprisonment in default of payment is not 
 directed, a deposit shall be made with the justice of an amount 
 sufficient to cover the sum adjudged to be paid together with 
 such further amount as the justice deems sufficient to cover the 
 costs of appeal. 
 
 In the first class of cases where the appeal is from a convic- 
 tion or order adjudging a penalty, or payment of a sum of 
 money, and in default of payment imprisonment, the appellant 
 has three courses open to him: (1) to remain in gaol; (2) to en- 
 ter into a recognizance with two sufficient sureties, or ( 3 ) to make 
 the deposit with the justice. And where no imprisonment is im- 
 posed he makes a deposit only. 
 
 The deposit must be made within the ten days after the con- 
 viction or order; it must be made with the justice who made the 
 
 C.C.P. 1*2
 
 338 AMOUNT OP DEPOSIT HOW MADE. 
 
 conviction or order, and it must be of an amount sufficient to 
 cover the fine, or sum, adjudged to be paid and also such further 
 sum as the justice deems sufficient to cover the costs of appeal. 
 
 In fixing the amount sufficient to cover the costs of appeal 
 the justice should include the witness fees likely to be paid. The 
 amount to be deposited for costs will differ in the different pro- 
 vinces, and the justice should inform himself as to what these 
 costs are usually taxed at before he fixes the amount, and it is well 
 to be on the safe side and fix a liberal amount. 
 
 Where a deposit in lieu of recognizance is not made until after 
 the sittings of the appellate Court for which notice was given, the 
 appeal connot be heard and should be quashed. McShadden v. 
 Lachance, (1901) 5 C. C. C. 43. 
 
 " I think that the obligation laid on an appellant by the Code 
 extends beyond the mere leaving of the money with the justice. 
 Its return by the justice into Court, before the time for hearing 
 the appeal, must in some way have been secured, and even if what 
 was done had been sufficient it could not be established by affi- 
 davit." McDouGALL, Co.J., at p. 25, in R. v. Gray, (1900) 5 C. 
 C. C. 24. In default of the justice having paid the deposit into 
 Court the appeal was quashed. 
 
 The provisions of sec. 750 as amended in 1909, and ae it now 
 stands, providing for a deposit in lieu of recognizance, were in 
 the original Code, sec. 880 (c). In the amendment made to this 
 section in 1905, al] the provisions relating to deposit were elimin- 
 ated. But they have been restored by the amendment of 1909, 
 and now the procedure as to appeals, in so far as a deposit is con- 
 cerned, is ithe same as in the original Code. 
 
 However, in amending the Code in 1909, and re-enacting para- 
 graph (c) of sec. 880 of the original Code, the provisions of sec. 
 888 of the original Code in regard to the justice forwarding the 
 deposit have been omitted. Section 888 amongst other things pro- 
 vided that, if on an appeal a deposit of money had been made, the 
 justice should return the deposit to the Court appealed to. And, 
 as we have seen in R. v. Gray, supra, the omission upon the part 
 of the justice to return the deposit into Court invalidated the ap- 
 peal. Presumably the provision of sec. 88.8 has been omitted ad- 
 visedly. At all events as the Code now stands tbere is no pro- 
 vision in it requiring the justice to return the deposit into Court, 
 and perhaps the case of R. v. Gray, supra, is no longer law. 
 
 Section 757, which replaces sec. 888, provides that the justice 
 shall transmit the conviction, or order, to 'the Court to which
 
 TRANSMISSION OF DEPOSIT BY JUSTICE. 339 
 
 the appeal is given before the time when an appeal from such con- 
 viction, or order, may be heard, there to be kept by the proper of- 
 ficer among the records of the Court. 
 
 If the justice is required to transmit the conviction, or order, 
 it seems reasonable that he should also transmit all else connected 
 with the conviction. As it is a condition precedent to the appeal 
 being heard that the deposit should be made with the justice, it 
 follows that proof of this fact must be before the Court appealed 
 to. How otherwise can the appellate Court know if the appeal 
 has been perfected? 
 
 In R. v. Gray, supra, JUDGE MACDOUGALL held that, " even if 
 what is clone had been sufficient, it could not be established by af- 
 fidavit." 
 
 It might be argued that, in the absence of any specific enact- 
 ment providing for the transmission by the justice of the deposit, 
 it is not necessary that the deposit should be in Court. As against 
 this it is to be remembered that the right of appeal is by statutory 
 enactment only, and is not an inherent right, and it should ap- 
 pear upon the face of the -proceedings that the statutory condi- 
 tions precedent have been complied with, otherwise the Court will 
 dismiss the appeal for want of jurisdiction. 
 
 How can the deposit be available for the purposes for which 
 it was deposited, if the money is not in the custody of the Court 
 to which the appeal is made? It is possible, therefore, that, even - 
 in the absence of a re-enactment of the provisions of the original 
 section 889, which specifically enacted that the justice should re- 
 turn the deposit to the Court appealed to, it may" be held that it 
 is still requisite and necessary that such return should be made 
 by the justice and the appellant would be on the safe side if he 
 sees that it is done. See R. v. Neuberger, (1902) 6 C. C. C. 142, 
 and R. v. Deliver, (1906) 10 C. C. C. 406, and see sub-sec. (2) 
 of sec. -751. 
 
 HEARING OF THE APPEAL. 
 
 751. The Court to which such appeal is made shall thereupon hear 
 and determine the matter of appeal and make such order therein, with or 
 without costs to either party, including costs of the Court below, as seems 
 meet to the Court, and, in case of the dismissal of an appeal by the defend- 
 ant and the affirmance of the conviction or order, shall order and adjudge 
 the appellant to be punished according to the conviction or to pay the 
 amount adjudged by the order, and to pay such costs as are awarded, and 
 shall, if necessary, issue process for enforcing the judgment of the Oourt. 
 
 2. In any case where a deposit has been made as provided in para- 
 graph (c) of section seven hundred and fifty, if the conviction or order is 
 affirmed, the Court may order that the sum thereby adjudged to be paid, 
 together with the costs of the conviction or order, and the costs of the
 
 340 HEARING OF APPEAL AND ADJOURNMENT. 
 
 appeal, shall be paid out of the money deposited, and that the residue, if 
 any, shall be paid to the appellant; and if the conviction or order is 
 quashed, the Court shall order the money to be repaid to the appellant." 
 
 3. The Court to which such appeal is made sh^ll IIH V C power, if neces- 
 sary, from time to time, by order endorsed on the conviction or order, to 
 adjourn the hearing of the appeal from one sittings to another, or others, 
 of the said Court. 
 
 4. Whenever any conviction or order is quashed on appeal, the clerk 
 of the peace or other proper officer shall forthwith endorse on the convic- 
 tion or order a memorandum that the same has been quashed. 
 
 5. Whenever any copy or certificate of such conviction or order is 
 made, a copy of such memorandum shall be added thereto, and shall, when 
 certified under the hand of the clerk of the peace, or of the proper officer 
 having the custody of the same, be sufficient evidence, in all Courts and for 
 all purposes, that the conviction or order has been quashed. 
 
 This section was also amended in 1909 by sub-sec. 2 being 
 repealed, and the present enactment being substituted. 
 
 The hearing of the appeal is by the Court, that is by the Judge 
 alone, as there is no right to a jury. See R. v. Malloy, (1900) 
 4 C. C. C. 116. 
 
 The Court has power from time to time to adjourn the hear- 
 ing from one sittings to another, or others, of the Court, so that 
 there may be more than one adjournment. But these adjourn- 
 ments must be by order of the Court and such order must be en- 
 dorsed upon the conviction or order. These requirements are im : 
 perative and should be looked to. No other order will be sufficient; 
 it must be "by order endorsed on the conviction or order,'"' if 
 made otherwise it will be irregular. See also R. v. Gregg, 13 D. 
 L. B. 770. 
 
 If the conviction, or order, is quashed on appeal a memoran- 
 dum that the same has been quashed must forthwith be endorsed 
 on the conviction, or order, by the proper officer. This is required 
 for the purpose of evidence in all Courts and for all purposes that 
 the conviction, or order, has been quashed. 
 
 No copy of a conviction, or order, that has been quashed, or a 
 certificate of the same, will be of any use as such evidence unless 
 such copy or certificate has added thereto a copy of such memor- 
 andum. 
 
 If an appeal is dismissed for want of compliance with the pre- 
 scribed forms, as service of notice, or of not entering into the 
 recognizance within the time required, or making the deposit in 
 manner required, the right of appeal is gone and cannot be re- 
 newed at any fulture sittings of the Court. See R. v. JJ. West 
 Riding of Yorkshire, 3 T. R. 776; R. v. JJ. Middlesex, 9 Dowl. 
 P. C. 163.
 
 PRACTICE AT HEARING OF APPEAL. 341 
 JUDGMENT ON APPEAL FINAL. 
 
 752. When an appeal against any summary conviction or order has 
 been lodged in due form, and in compliance with the requirements of this 
 Part, the Court appealed to shall try, and shall be the absolute judge, as 
 well of the facts as of the law, in respect to such conviction or order. 
 
 2. Any of the parties to the appeal may call witnesses and adduce evi- 
 dence whether such witnesses were called or evidence adduced at the hearing 
 before the justice or not, either as to the credibility of any witness, or as 
 to any other fact material to the inquiry. 
 
 3. Any evidence taken before the justice at the hearing below, certified 
 by the justice, may be read in such appeal, and shall have the like force 
 and effect as if the witness was there examined, if the Court appealed to 
 is satisfied, by affidavit or otherwise, that the personal presence of the 
 witness cannot be obtained by any reasonable efforts. 
 
 It is a condition precedent to the Court trying, or hearing, the 
 appeal, that the same has been lodged in due form and in com- 
 pliance with the requirements of Part XV. of the Code. See R. v. 
 Ah Yin, 6 C. C. C. 66. 
 
 At the hearing, the first thing to be done by the appellant after 
 opening his case is to prove his notice of appeal, unless the same 
 is admitted. This proof is requisite to establish that the appeal 
 has been lodged in due form and in compliance with the Act. 
 
 The service of the notice may be proved by affidavit. R. v. 
 Gurran, 22 C. C. C. 388. 
 
 After the notice has been properly proved, or has been ad- 
 mitted, the general practice is for the clerk of the Court to read 
 the conviction returned by the convicting justice. The Court can 
 only take notice of the record of conviction returned by the 
 justice. R. v. Allen, 15 East 333, 346; Boston v. Carew, 5 D. & 
 R, 558. 
 
 If an appeal is called and adjourned to the next session at 
 the request of the respondent's counsel, he may notwithstanding 
 require proof of due notice of appeal when the case comes on to 
 be heard. R. v. JJ. Middlesex, 2 Dowl. & Dowl. 719; but see 
 R. v. JJ. Hertfordshire, 4 B. & A. 561, where it was held that 
 the respondent had waived proof of tbe notice. 
 
 If any objection arise on the face of the conviction, the appel- 
 lant usually 'begins and, if he does so, he is bound to state all his 
 objections thereto at once in order that they may be met on the 
 other side, so that all discussion relating to such objection may be 
 had and decision therein given before the hearing on the merits 
 commences. 
 
 If no objections are taken to the conviction, or such objections 
 are overruled, the respondent will then open his case upon the
 
 342 PRACTICE AT HEARING OP APPEAL. 
 
 merits. Both parties are entitled to call witnesses and adduce 
 evidence whether such witnesses were called, or evidence adduced 
 at the hearing before the justice, or not, either as to the credibility 
 of any witness, or as to any other facts material to the inquiry. 
 R, v. Washington, (1881) 46 U. C. R. 221. 
 
 Any evidence taken before the justice at the hearing below 
 may be read on the appeal. But such evidence must be certified 
 by the justice. And it shall have the like force and effect as 
 if the witness was examined at the hearing on appeal, if the Court 
 appealed to is satisfied by affidavit, or otherwise, that the personal 
 presence of the witness cannot be obtained by any reasonable 
 efforts. This implies that it is necessary that proof to the satis- 
 faction of the Court shall be given as to the efforts that have 
 been made to secure the attendance of the absent witness before 
 his depositions can be read. This is the natural deduction from 
 the language used, and yet the sub-section is so unhappily worded 
 that it might be open to the construction that the only consequence 
 of the lack of such affidavit, or other proof, " that the personal 
 presence of the witness cannot be obtained," would be that the 
 evidence would not have the " like force and effect as if the wit- 
 ness was there examined," but still might be read on the appeal. 
 
 This sub-section lacks the certainty and precision of the lan- 
 guage used in sec. 999 relating to the reading of depositions taken 
 at a preliminary inquiry. However, be ready with your affidavits 
 to prove the efforts that have been made to secure the personal 
 presence of the witness, as this will likely be required of you 
 before you can tender and use the evidence taken before the 
 justice. 
 
 Witnesses living outside the province may be subpoenaed and 
 compelled to attend a hearing on appeal, and a Judge may even 
 make an order for a subpoena under sec. 676 of the Code, the pro- 
 visions of which section are extended to Part XV. by sec. 711, 
 as we have already seen. See R. v. Gillespie, 16 P. B. 155. 
 
 OBJECTIONS FOR MATTERS OF FORM. 
 
 753. No judgment shall be given in favour of the appellant if the ap- 
 peal is based on an objection to any information, complaint or summons, 
 or to any warrant to apprehend a defendant issued upon any such inform- 
 ation, complaint or summons, for any alleged defect therein in substance 
 or in form, or for any variance between such information, complaint, sum- 
 mons or warrant and the evidence adduced in support thereof at the hear- 
 ing of such information or complaint, unless it is proved before the Court 
 hearing the appeal that such objection was made before the justice before 
 whom the case was tried, and by whom such conviction, judgment or de- 
 cision was given, nor unless it is proved that notwithstanding it was shewn
 
 JUDGMENT ON THE MERITS. 343 
 
 to such justice that by such variance the person summoned and appearing 
 or apprehended had been deceived or misled, such justice refused to ad- 
 journ the hearing of the case to some further day as in this Part provided. 
 
 As to how far this provision extends, see R. v. Johnson, 17 C. 
 C. C., at p. 175. 
 
 JUDGMENT ON MERITS. 
 
 754. In every case of appeal from any summary conviction or order 
 had or made before any justice, the Court to which such appeal is made 
 shall, notwithstanding any defect in such conviction or order and 
 notwithstanding that the punishment imposed or the order made 
 may be in excess of that which might lawfully have been imposed or made, 
 hear and determine the charge or complaint on which such conviction or 
 order has been had or made, upon the merits, and may confirm, reverse or 
 modify the decision of such justice, or may make such other conviction or 
 order in the matter as the Court thinks just, and may by such order exercise 
 any power which the justice whose decision is appealed from might have 
 exercised, and may make such order as to costs to be paid by either party 
 as it thinks fit. 
 
 2. Such conviction or order shall have the same effect and may be 
 enforced in the same manner as if it had been made by such justice. 
 
 3. Any conviction or order made by the Court on appeal may also be 
 enforced by process of the Court itself. 
 
 In Collette v. R., 16 C. C. C. 281, the following points were 
 decided by CROSS, J., in the Court of K.B., Quebec: 
 
 1. Where an appeal from a summary conviction is dismissed without 
 any variance of the order made by the justice, the enforcement of the con- 
 viction so affirmed should proceed under warrant of the convicting justice 
 or of some other justice for the same territorial division, and not under 
 warrant issued from the Appellate Court, except for the costs of appeal. 
 
 2. Tf, instead of an affirmance, a different judgment has been pro- 
 nounced on the appeal, the judgment so substituted for that appealed from 
 may be enforced either by the process of the Court appealed to (Code sec. 
 751) or by process issued by the convicting justice. 
 
 3. When the costs of an unsuccessful appeal are awarded against the 
 defendant, the payment of such costs may be enforced either by process of 
 the Appellate Court or by a justice's warrant upon certificate of default 
 under Code sec. 759. 
 
 4. Code Forms 53 and 54 of warrants by justices in default of pay- 
 ment of the costs of appeal from a summary conviction may be varied 
 under Code sec. 1152 so as to apply to warrants issued for the same pur- 
 pose by the Appellate Court. 
 
 Where the conviction differs from the minute of conviction, the 
 Court may alter the conviction, so as to make it conform to the 
 minute, but if they are alike and the conviction happens to be 
 wrong, the Court has no power to amend, since it cannot interfere 
 with the adjudication. See R. v. Elliott, 12 0. E. 524; R. v. 
 Walsh, 2 0. E. 206; McLennan v. McKinnon, 1 0. E. 219. But 
 see, contra, R. v. Menary, 19 0. B. 691. 
 
 This sec. 754 applies also to an appeal by the prosecutor from 
 the order of the justice dismissing the complaint. And, where an 
 order is made by the County Court Judge allowing the appeal
 
 344 ENFORCING CONVICTION AFFIRMED ON APPEAL. 
 
 and convicting the accused, the prosecutor's costs of appeal can be 
 included in the costs awarded by the Judge's conviction and pay- 
 ment thereof may be enforced by a distress warrant and imprison- 
 ment in default. R. v. Hawbolt, (1900) 4 C. C. C. 229. 
 
 On an appeal by way of stated case, it is discretionary with 
 the Court to hear an objection not taken before the justice. A 
 conviction for two separate offences may be quashed, although the 
 accused did not appear before the justice, if it cannot be ascer- 
 tained from the proceedings for which of the separate offences the 
 justice intended to convict. Simpson v. Lock. (1903) 7 C. C. 
 C. 294. 
 
 On an appeal from a summary conviction had upon a plea of 
 guilty, the case should not be re-opened. " To open up the matter 
 at this stage would be tantamount to allowing the defendant to 
 withdraw his plea of ' guilty ' after he was convicted on that plea." 
 MARTIN, J., in R. v. Bowman, (1898) 2 C. C. C. 89. 
 
 Where the Legislative Assembly has provided that the provi- 
 sions of Part LVIII. (now Part XV.) of the Criminal Code shall 
 apply to such appeals, and has also enacted that no appeal shall 
 lie unless an affidavit of merits be filed, the latter is a condition 
 precedent of the appeal in addition to those contained in sec. 880 
 (now sec. 751) of the Code, notwithstanding the provision of sec. 
 881 (now sec. 752) that where the requirements of Part LVTTT. 
 (now Part XV.) have been complied with, the Court shall try the 
 appeal. R. v. McLeod, (1901) 6 C. C. C. 23. 
 
 Where the costs and charges of conveying to gaol are imposed 
 in case of non-payment of the fine under the " Ontario Summary 
 Convictions Act," the amount thereof must be stated in the con- 
 viction, but a conviction improper in that respect may be amended 
 under 2 Edw. VII. (Ont.), ch. 12, sec. 15, upon an appeal, by 
 striking out the award of euch costs. Collins v. Horning, (1903) 
 6 C. C. C. 514. 
 
 COSTS WHERE APPEAL NOT PROSECUTED. 
 
 755. The Court to which an appeal is made, upon proof of notice of 
 the appeal to such Court having been given to the person entitled to receive 
 the same, whether such notice has been properly given or not, and although 
 such appeal has not been afterwards prosecuted or entered, may, if such 
 appeal has not been abandoned according to law, at the same sittings for 
 which such notice was given, order to the party or parties receiving the 
 same such costs and charges as are thought reasonable and just by the 
 Court to be paid by the party or parties giving such notice. 
 
 2. Such costs shall be recoverable in the manner provided by this Act 
 for the recovery of costs upon an appeal against an order or conviction.
 
 COSTS WHEN APPEAL NOT PROSECUTED. 345 
 
 Proof of notice of appeal is made a condition precedent to 
 the Court exercising the jurisdiction here given, and it is imma- 
 terial whether such notice has been properly given or not. The 
 inclusion of these latter words in this section renders the decisions 
 in Re Madden, 31 U. C. E, 333, and R. v. Becker, 20 0. E. 676, 
 no longer applicable. 
 
 Where the notice of appeal is given for a certain Court, there 
 is no jurisdiction to award costs against the appellant in respect 
 of the proceedings in appeal at any other sittings than the one 
 for which notice was given. McShadden v. Lachance, (1901) 5 C. 
 C. C. 43. 
 
 The same result follows when the appeal was quashed because 
 notice had been served upon only one of the two justices who 
 had tried the case. R. v. Edelston, 17 C. C. C. 155. 
 
 This decision was, however, disapproved in Pakkala v. Han- 
 nuksela, 20 C. C. C. 247, and see Ex parte Sprague, 8 C. C. C. 
 109. 
 
 The order for costs should direct payment thereof to be made 
 to the " clerk of the peace, or other proper officer of the Court." 
 See sec. 758, post, and Gay v. Mathews, 33 L. J. M. C. 14. 
 
 It is the Court to which " an appeal is made," that is 
 authorized to make the order as to costs. The appeal to be pro- 
 perly made must strictly comply with the requirements of sec. 
 750, and it is submitted that, notwithstanding proof of notice of 
 appeal being given, it will be the duty of the Court to inquire as 
 to whether, or not, the requirements of paragraph (c) of sec. 750 
 have also been complied with before the order as to costs can be 
 made. 
 
 If the appeal has been abandoned according to law, that is, in 
 accordance with the provision of sec. 760, post, then no order can 
 be made. 
 
 The costs awarded under this section shall be " such costs and 
 charges as are thought reasonable and just by the Court." 
 
 These costs, it would appear, must be fixed, or taxed, by the 
 Court during the sitting at which the order is made, and the 
 amount thereof must be set out in the minute of judgment, or 
 order, made, unless taxed out of sessions by consent and the 
 amount afterwards filled in the order. See Bothwell v. Burnside, 
 (1900) 4 C. C. C. 450, 31 0. E. 695, and see R. v. Mclntosh, 28 
 0. E, 603. See also R. v. Hamlink, 17 C. C. C. 162.
 
 346 PROCEEDINGS WHEN APPEAL FAILS. 
 
 Where the sessions are adjourned to a future day, the costs 
 may be finally settled at the adjourned sessions. R. v. Hampshire 
 JJ., 33 L. J. Q. B. 176. 
 
 If no adjournment, and nothing said about costs, they cannot 
 be given or taxed at the next subsequent sessions. E. v. JJ. of 
 Staffordshire, 7 E. & B. 935. 
 
 If the parties consent to have the costs taxed out of Court, this 
 can be done and judgment entered nunc pro tune. Freeman v. 
 Reid, 9 C. B. N. S. 301. Or there may be a waiver. Ex parte 
 Watkins, 26 J. P. 71. 
 
 Consent to tax costs out of Court may be inferred from the 
 universal custom to do so. Midland R'y. Co. v. Edmonton, 17 
 Cox 731. 
 
 PROCEEDINGS WHERE APPEAL FAILS. 
 
 756. If an appeal against a conviction or order is decided in favour 
 of the respondents, the justice who made the conviction or order, or any 
 other justice for the same territorial division, may issue the warrant of 
 distress or commitment for execution of the same, as if no appeal had been 
 brought 
 
 i 
 
 It was held by MR. JUSTICE WETMORE in Simington v. Col- 
 lourne, (1900) 4 C. C. C. 36t7, in a well considered judgment in 
 which the majority of the Court concurred, that, reading this 
 section along with sec. 750, (then sec. 880), that an appeal under 
 sec. 880 (now 750) "has the effect of suspending the operation 
 of the conviction, or order, appealed against." 
 
 In other words that, upon an appeal from a summary conviction 
 being perfected as required by sec. 750, the same operates as a 
 stay of proceedings, and the person convicted does not suffer the 
 loss of any rights until his appeal has been dismissed and the con- 
 viction thereby affirmed. 
 
 Serious consequences are apt to arise under the provisions of 
 this section, 756, unless the Judge in Appeal, or the Crown auth- 
 orities, are alert after " an appeal against a conviction or order 
 is decided in favour of the respondents." The warrant which is 
 authorized by this section can only issue in the event of no previous 
 warrant having been issued for the enforcement of the conviction. 
 
 The practice always followed upon the conviction of a person, 
 say for an offence against the provisions of sec. 238, vagrancy, is 
 for a warrant to issue forthwith committing the prisoner to gaol, 
 and he is placed in custody accordingly. And it is not until after 
 he i? in custody and held under the warrant of commitment that
 
 ENFORCING CONVICTION AFFIEMED ON APPEAR. 347 
 
 he gives the necessary notice and obtains bail and his release under 
 the provisions of sec. 750. 
 
 In E. v. Arscott, 9 0. K. 541, BOSE, J., expressed the opinion 
 that, upon an appeal being heard, and the conviction being af- 
 firmed, the convicting magistrate is functus officio and cannot issue 
 his warrant as provided by sec. 756 since he has already performed 
 that duty. But in Arscatt v. Lilley, 11 0. E. 153, affirmed on 
 appeal, 14 A. R. 283, it was expressly held that, in such a case, 
 the convicting justice might issue a final warrant of commitment 
 to enforce the conviction, although he had already issued a warrant 
 under which the accused had been imprisoned until she had entered 
 an appeal. 
 
 By sub-sec. 3 of sec. 754 it is provided as follows: "Any con- 
 viction or order made by the Court on appeal may also be enforced 
 by process of the Court itself." 
 
 Section 751 also provides that " in case of the dismissal of an 
 appeal by the defendant and the affirmance of the conviction, or 
 order, the Court shall order and adjudge the appellant to be 
 punished according to the conviction," &c. 
 
 We therefore find that the appellate Court is vested with full 
 authority for the enforcement of the conviction. If, however, the 
 appellate Court does not issue any warrant of commitment, the 
 accused, in such a case, may be taken into custody again under 
 the original warrant of commitment which is not vacated by the 
 lodging of the appeal but only suspended. R. v. Dwrlin, 19 C. C. 
 C. 392. See, also, Collette v. King, 16 C. C. C. 281, and R. v. 
 Ackerson, 20 C. C. C. 245. 
 
 TRANSMISSION OF CONVICTION BY JUSTICE. 
 
 757. Every justice before whom any person is summarily tried, shall 
 transmit the conviction or order to the Court to which the appeal is by this 
 Part given, in and for the district, county or place wherein the offence is 
 alleged to have been committed, before the time when an appeal from such 
 conviction or order may he heard, there to be kept by the proper officer 
 among the records of the Court. 
 
 2. The conviction or order shall be presumed not to have been appealed 
 against, until the contrary is shewn. 
 
 3. Upon any indictment or information against any person for a sub- 
 sequent offence, a copy of such conviction, certified by the proper officer 
 of the Court, or proved to be a true copy, shall bf sufficient evidence to 
 prove a conviction for the former offence. 
 
 4. In any case when a conviction or order is required by this Part 
 after appeal to be enforced by any justice, the clerk of the Court to which 
 the appeal was had, or other proper officer, shall remit such conviction, 
 or order, and all papers therewith sent to the Court of Appeal, excepting 
 any notice of intention to appeal and recognizance, to such justice to be 
 by him proceeded upon as in such case directed by this Part.
 
 348 TRANSMISSION OF CONVICTION BY JUSTICE. 
 
 Apart from the provisions of sec. 888 (now 757), it is the duty 
 of the justice to return the information and depositions with the 
 conviction. R. v. Rondeau, (1903) 9 C. C. C. 523. 
 
 " The provisions of sec. 757 are general and apply to every 
 conviction or order made by a justice whether there is an appeal 
 or not. It is the duty of the magistrate to comply with sec. 757, 
 and he ought to have the documents filed before the Court opens. 
 I am not prepared to say what the consequences may be to him if 
 he does not, but, as stated in my opinion, the provision is only 
 directory ; if it is in Court when the appeal is called on for hearing 
 
 1 think it is sufficient for the purposes of the appeal. I can find 
 no case that holds that these papers should be filed before the 
 Court opens." WETMORE, C.J., at p. 197 in R. v. Williamson, 
 (1908) 13 C. C. C. 195, and see In re Ryer and Plows, 46 U. C. 
 R. 206, and Harwood v. Williamson, (1908) 14 C. C. C. 76. 
 
 If the conviction or order has not been returned to the sessions, 
 a subpoena duces tecum should be served upon the clerk to the 
 justices by whom it is made. The same course must be adopted 
 with regard to other documents which the parties require to give 
 in evidence at the hearing. Paley, 8th ed., p. 397, and see Barker 
 v. Davis, 34 L. J. M. C. 140. 
 
 Where a witness served with a subpoena duces tecum does not 
 attend, or attends and refuses to produce the document (not on 
 the ground of privilege) , secondary evidence cannot be given of its 
 contents, the only remedy being to punish the witness for a con- 
 tempt. R. v. Llanfaethly, 2 E. & B. 940 ; Phelps v. Prew, 3 E. & 
 B. 430. 
 
 As to return of convictions, see R. v. Whalen, 45 U. C. R. 396 : 
 R. v. Monaghan, (1897) 2 C. C. C. 488; R. v. Ashcroft, (1899) 
 
 2 C. C. C. 385. In this last case, it was laid down that, if a 
 conviction has been filed by the magistrate under section 801 (now 
 793) of the Code in a court of Superior criminal jurisdiction, a 
 motion may be made to quash the same without first suing out a 
 writ of certiorari. 
 
 But see the judgment of HARVEY, J., in R. v. Gehrke, (1906) 
 11 C. C. C. 109, where he goes very fully into the Ontario cases 
 upon the subject and adopts the reasoning of WETMORE, J., in R. 
 v. Monaglian, and holds that a writ of certiorari, and a return 
 thereto by the convicting justice, are requisite for the purpose of 
 bringing the conviction before the Court on an application to 
 quash the same, notwithstanding the fact that the original convic-
 
 EECOVERY OF COSTS OF APPEAL. 349 
 
 tion is on file in the Court at the time, sent there under the provi- 
 sions of sec. 888 (now sec. 757) of the Code. 
 
 And see R. v. Macdonald (No. 2), (1902) 5 C. C. C. 279, 
 where it was held by the Supreme Court of Nova Scotia, that a 
 motion to quash a summary conviction cannot be entertained by a 
 Superior Court without a writ of certiorari for that purpose and a 
 return to such writ. 
 
 COSTS OF APPEAL AND EECOVERY THEREOF. 
 
 758. If upon any appeal the Court trying the appeal orders either 
 party to pay costs, the order shall direct the costs to be paid to the clerk 
 of the peace or other proper officer of the Court, to be paid over by him to 
 the person entitled to the same, and shall state within what time the costs 
 shall be paid. 
 
 759. If such costs are not paid within the time so limited, and the 
 person ordered to pay the same has not been bound by any recognizance 
 conditioned to pay such costs, the clerk of the peace or his deputy, on 
 application of the person entitled to the costs, or of any person on his 
 behalf, and on payment of any fee to which he is entitled, shall grant to 
 the person so applying a certificate that the costs have not been paid. 
 
 2. Upon production of the certificate to any justice in and for the 
 eame territorial division, such justice may enforce the payment of the costs 
 by warrant of distress and, in default of distress, may by warrant commit 
 the person against whom the warrant of distress has issued, for any term 
 not exceeding one month, unless the amount of the costs and all costs and 
 charges of the distress and also the costs of the commitment and of the 
 conveying of the party to prison, if the justice thinks fit so to order, are 
 sooner paid. 
 
 3. The said certificate shall be in Form 52 and the warrants of distress 
 and commitment in Forms 53 and 54 respectively. 
 
 Proceeding by way of certiorari against a summary conviction 
 is not an appeal to which sec. 758 refers, and an ex parte order 
 for payment of costs upon the dismissal of a motion for certiorari 
 directing that the costs should be paid to the clerk of the peace, &c., 
 was discharged. R. v. Graham, (1898) 1 C. C. C. 405. 
 
 The issuing of a warrant of commitment under sec. 759 is dis- 
 cretionary and not compulsory. See Delaney v. McNab, 21 C. P. 
 563. 
 
 ABANDONMENT OF APPEAL. 
 
 760. An appellant may abandon his appeal by giving to the opposite 
 party notice in writing of his intention six clear days before the sitting 
 of the Court appealed to, and thereupon the costs of the appeal shall be 
 added to the sum, if any, adjudged against the appellant by the conviction 
 or order, and the justice shall proceed on the conviction or order as if there 
 had been no appeal. 
 
 Six clear days are to be reckoned exclusively of both the first 
 and last days. Re Sams & Toronto, 9 U. C. E. 181.
 
 350 STATING A CASE FOR THE OPINION OF THE COURT. 
 
 If the proper notice of abandonment is not given, sec. 755 will 
 apply. 
 
 The costs of appeal are to be added to the sum, if any, adjudged 
 against the appellant by the conviction, or order, and the justice 
 shall proceed on the conviction, or order, as if there had been no 
 appeal. This means that the justice may, if necessary, proceed 
 by warrant of distress not only to collect the original sum required 
 to be paid by the defendant, but there shall be added thereto the 
 costs of appeal. 
 
 These costs of appeal may include solicitor's fees. See R. v. 
 Uclntosh, 28 0. R. 603. 
 
 STATING A CASE. 
 
 761. Any person aggrieved, the prosecutor or complainant as well as 
 the defendant, who desires to question a conviction, order, determination 
 or other proceeding of a justice under this Part, on the ground that it is 
 erroneous in point of law or is in excess of jurisdiction, may apply to such 
 justice to state and sign a case setting forth the facts of the case and the 
 grounds on which the proceeding is questioned, and, if the justice declines 
 to state the case, may apply to the Court for an order requiring the case 
 to be stated. 
 
 " 2. The application shall be made and the case stated within such 
 time and in such manner as is from time to time directed by rules or 
 orders made under section five hundred and seventy-six of this Act. 
 " 3. If there be no rule or order otherwise providing, 
 " (a) the application shall be made in writing to the justice and a 
 copy thereof left with him. and may be made at any time within 
 seven clear days from the date of the proceeding to be questioned ; 
 " (b) the case shall be stated within three calendar months after the 
 date of the application, and after the recognizance hereinafter re- 
 ferred to has been entered into ; and 
 
 " (c) the applicant shall within three days after receiving the case 
 transmit it to the Court, first giving notice in writing of such appeal, 
 with a copy of the case as signed and stated, to the other party to 
 the proceeding which is questioned." 
 
 By sec. 576 of the Code power is given to every Superior Court 
 of criminal jurisdiction to make rules for regulating the practice 
 in criminal matters, and among other things the proceedings on 
 application to a justice to state and sign a case for the opinion of 
 the Courts as to a conviction, order, determination or other pro- 
 ceeding before him. 
 
 And by the amendment of 8-9 Edw. VII. ch. 9, sec. 2 if there 
 time and in such manner as is from time to time directed by rules 
 or orders made under sec. 576 of the Code. 
 
 And by the amendment of 8-9 Edw. VII. ch. 9, sec. 2 if thero 
 be no rule, or order, otherwise providing then the application 
 must be made in writing to the justice and copy left with him, and
 
 RULES AS TO STATED CASES. 351 
 
 may be made at any time within seven clear days from the date of 
 the proceedings to be questioned. If more than one justice pre- 
 sided when the decision was given, then the application should be 
 made to both of the justices. See Westmore v. Paine, [1891] 1 Q. 
 E. 482. 
 
 The case must be stated within three calendar months after 
 the date of application and after the recognizance has been entered 
 into. 
 
 After receiving the case the applicant must, within three days 
 thereafter, transmit it to the Court. The applicant is also re- 
 quired, before he transmit the case to the Court, to give notice in 
 writing of the appeal and serve a copy of the case as signed and 
 etated, to the other party to the proceeding in question. The re- 
 quirements of the statute as to the mode and manner of applica- 
 tion for a case must be strictly complied with and they cannot be 
 waived by the parties, or justices. Lockhart v. St. Albans, 21 Q. 
 B. D. 188. 
 
 It is to be noted that any person aggrieved whether prosecutor, 
 or complainant, or defendant, may question the conviction, order, 
 or determination, or other proceeding of a justice under Part XV. 
 The appeal by way of stated case under this and the subsequent 
 sections is therefore confined to proceedings by way of summary 
 convictions taken and concluded under Part XV., and does not 
 apply to proceedings under Part XVI. 
 
 The only grounds of appeal allowable by way of stated case 
 under this section are: (1) That the decision appealed from "is 
 erroneous in point of law," or (2) is "in excess of jurisdiction." 
 
 A case can, therefore, not be stated upon a question of fact. 
 
 The Superior Court is concerned alone as to whether or not the 
 decision of the justice is erroneous in point of law, and to see 
 whether the facts are sufficient to warrant the legal conclusion 
 ^A r hich the justices have drawn from the facts. See Cornwall v. 
 Sanders, 3 B. & S. 206 ; Taylor v. Vram, 31 L. J. M. C. 252, and 
 E. v. Raffles, 45 L. J. M. C. 61. 
 
 As to who is a " person aggrieved," see notes to sec. 749. 
 
 As we will see by sec. 762, at the time of making his applica- 
 tion and before a case is stated and delivered to him by the justice, 
 the applicant must in every instance enter into a recognizance 
 before such justice or some other justice having jurisdiction, con- 
 ditioned to prosecute his appeal without delay and to submit to the 
 judgment of the Court and pay the costs awarded against him. if
 
 352 DECISIONS AS TO STATED CASES. 
 
 any. The applicant must also, at the same time and before the 
 case is delivered to him, pay the justice such fees as he is entitled 
 to. 
 
 If the appellant is in custody he shall be liberated upon the 
 recognizance being further conditioned for his appearance before 
 the justice within ten days after the judgment of the Court has 
 been given, to abide such judgment, unless the judgment appealed 
 against is reversed. 
 
 Where rules of Court have been made under the authority of 
 sec. 576 of the Code regulating the proceedings for application to a 
 justice to state and sign a case, these rules must be strictly com- 
 plied with in every respect, since a proper compliance with the same 
 is a condition precedent to the appeal being heard. See E. v. 
 Earley (No. 2), (1906) 10 C. C. C. 336; South Staffordshire v. 
 Stone, (1887) 19 Q. B. D. 168; Lockhart v. St. Albans, (1888) 
 21 Q. B. D. 188; JR. v. Earley (No. 1), (1906) 10 C. C. C. 280 and 
 Woodhouse v. Woods, 29 L. J. M. C. 149. 
 
 The time limited for appeals from summary convictions has no 
 application to a stated case. R. v. Ferguson, (1906) 11 C. C. C. 
 277. 
 
 An objection of law which arises from the facts stated in the 
 case may be taken and decided by the Court, although not raised 
 before the justice. Knight v. Halliwell, L. E. 9 Q. B. 412. 
 
 On an appeal by way of stated case from a summary con- 
 viction it is discretionary with the Court to hear and determine an 
 objection which was not taken before the justice. Simpson v. 
 Lock, (1903) 7 C. C. C. 294. 
 
 But in R. v. Nugent, (1904) 9 C. C. C. 1, it was held that 
 the questions of law to be determined upon a stated case under 
 sec. 761 are those only which have first been raised before the 
 justice, and which are specified and set forth in the stated case. 
 
 A police magistrate who has made a conviction under the Alien 
 Labour Act is not persona designata, and he may state a case for 
 the opinion of the Court under sec. 761 of the Code. R. v. Breck- 
 inridge, (1905) 10 C. C. C. 180. 
 
 Upon the hearing of a case stated by a justice under the Nova, 
 Scotia Summary Convictions Act, the conviction having imposed 
 the proper money penalty, but having affixed a term of imprison- 
 ment not authorized, the Court amended the conviction by insert- 
 ing the term of imprisonment applicable under the statutory pro- 
 vision. See R. S. N. S. ch. 100, sees. 146, 147, allowing such 
 amendment. /?. v. Power (1908) 14 C. C. C. 264.
 
 TIME FOE DELIVEKY OF STATED CASE. 353 
 
 " The ruling by a magistrate as to the admissibility of evidence 
 is not a ' proceeding ' within the meaning of sec. 761 of the Code, 
 nor is it a ' determination/ and. it is certainly not a ' conviction ' 
 or 'order.' We should not, therefore, have been asked to decide 
 as to the admissibility of evidence," etc. EIDDELL, J., at p. 118, 
 in R. v. Dominion Athletic Club, (1909) 15 C. C. C. 105. 
 " The police magistrate has made the evidence a part of the case ; 
 that he should not have done. The Act is precise that he should 
 ' sign a case setting forth the facts of the case and the grounds on 
 which the proceeding is questioned ' ; then our duty is to determine 
 the ' questions of law arising thereon.' We should have nothing 
 before us but the facts and the grounds aforesaid." EIDDELL, J., 
 at p. 125, in same case. 
 
 Where the justices did not deliver the case to the appellant 
 within the time fixed by the Eules of Court, but it was established 
 that the appellant had done all that was practicable for him to do, 
 it was held that he should not lose his right to appeal. It was 
 also held that the recognizance of the appellant alone was a com- 
 pliance with the provisions of the Code. R. v. Turnbull, (1909) 
 
 15 C. C. C. 1. 
 
 Where a case is stated under Part XV. of the Code, or under 
 the Ontario Summary Convictions Act, it is to be heard by the 
 High Court and not by the Court of Appeal. R. v. Henry, (1910) 
 
 16 C. C. C. 73. 
 
 Paragraph (b) of sub-sec. 3 of sec. 761 requires that "the 
 case shall be stated within three calendar months after the date of 
 the application and after the recognizance has been entered into." 
 These words have been held to be directory only as to the duties of 
 the justices after notice, and an application to strike out a case not 
 stated within the time fixed by this rule was refused. Hughes v. 
 Wavertree Local Board, (1894) 10 T. L. E. 357, and 58 J. P. 654. 
 
 When an appellant has done all that he can to comply with the 
 statute, but through the act of the other party he has been pre- 
 vented from fulfilling its conditions, there may be a relaxation of 
 the rule in his favour, Ibid. 
 
 And, where the respondent could not be found, it was held suffi- 
 cient to serve on the solicitor, who appeared before the magistrate, 
 the notice of appeal and copy of the case within three days, it 
 appearing that they had afterwards come to her hands. Syred v. 
 Carruthers, E. B. & E. 469, 27 L. J. M. C. 273. 
 
 C.C.P. 23
 
 354 TRANSMISSION OF CASE TO COURT. 
 
 If after the expiration of three days the case remains in the 
 appellants' hands, it becomes wholly inoperative and, if he take it 
 back to the justices, they have no power of amending it, and if 
 they do so, in fact, the appellant does not gain a further period 
 of three days from the amendment for transmitting the case to the 
 Court. Query, whether the justices can amend the case within 
 three days after they have delivered it to the appellant? Glouces- 
 ter Board of Health v. Chandler, 32 L. J. M. C. 66, 7 L. T. 722. 
 
 Where an appellant received the case from the justices on Good 
 Friday and transmitted it to the proper Court on the following 
 Wednesday, it was held that, as the offices of the Court were closed 
 from Friday until Wednesday-, the appellant had transmitted the 
 case as soon as it was possible for him to do so, and, therefore, had 
 sufficiently complied with the requirements of the statute. Mayor 
 v. Harding, L. R. 2 Q. B. 410, 16 L. T. 429. 
 
 The Crown office rules provide that every special case shall be 
 divided into paragraphs, each of which as nearly as may be is to 
 be confined to a distinct portion of the subject, and is to be num- 
 bered consecutively. As in some of the provinces of Canada there 
 are no rules, it will be well to be guided by the Crown office rules 
 as to the preparation of the case. 
 
 On the argument, the appellant always begins, and, as a rule, 
 only one counsel will be heard on each side. 
 
 If the respondent does not appear, the appellant must shew 
 that the decision of the justice is wrong before he can obtain the 
 judgment of the Court. Syred v. Clarriithers, supra. 
 
 The Appellate Court will not decide on the weight and suffi- 
 ciency of the evidence, but will accept the) finding of the justice 
 upon the facts within his jurisdiction as conclusive, whatever may 
 be the opinion of the Court as to the value of the evidence. Corn- 
 well v. Sanders, 3 B. & S. 206, 32 L. J. M. C. 6. 
 
 The Court has only to see whether the determination is errone- 
 ous "in point of law." See Taylor v. Oram, supra. 
 
 Justices have no right to be heard in support of their decision 
 upon the argument of a case stated by them for the opinion of the 
 Court. Smith v. Butler, 16 Q. B. D. 349. 
 
 RECOGNIZANCE BY APPELLANT. 
 
 762. The appellant at the time of making such application, and before 
 a case is stated and delivered to him by the justice, shall, in every instance, 
 enter into a recognizance before such justice or some other justice exercis- 
 ing the same jurisdiction, with or without surety or sureties, and in such
 
 RECOGNIZANCE WHEN CASE STATED. 355 
 
 sum as to the justice seems meet, conditioned to prosecute his appeal with- 
 out delay, and to submit to the judgment of the Court and pay such costs 
 as are awarded by the same; and the appellant shall, at the same time, 
 and before he shall be entitled to have the case delivered to him, pay to 
 the justice such fees as he is entitled to. 
 
 2. The appellant, if then in custody, shall be liberated upon the 
 recognizance being further conditioned for his appearance before the same 
 justice, or such other justice as is then sitting, within ten days after the 
 judgment of the Court has been given, to abide such judgment, unless the 
 judgment appealed against is reversed. 
 
 " 762A. Where, pending an application for the statement of a case, 
 the justice dies or quits office the applicant may, on notice to the other 
 party or parties, apply to the Court to state a case itself, and if a case is 
 thereupon stated it may be dealt with as if it had been duly stated by the 
 said justice. 
 
 "2. Before any such case is stated by the Court the applicant shall 
 enter into recognizances as provided by section 762." 
 
 It is a condition precedent to a case being stated and delivered 
 to the applicant, that the appellant in every instance should enter 
 into a recognizance with, or without, sureties, and in such sum as 
 to the justice seems meet. And a cash deposit cannot be accepted 
 in lieu of recognizance. See R. v. Geiser, (1901) 5 C. C. C. 154. 
 
 If the appellant is in custody, he shall be liberated upon the 
 recognizance being further conditioned for his appearance before 
 the same justice, or such other justice as is then sitting, within 
 ten days after judgment of the Court has been given, to abide 
 such judgment, unless the judgment appealed against is reversed. 
 
 If the judgment of the Court sustains the conviction and the 
 appellant is required to serve the balance of the sentence originally 
 imposed by the conviction appealed against, the same proceedings 
 may be taken to enforce the conviction as in the case of an appeal 
 under sec. 750. See pp. 346 and 347, supra, and sec. 767, post. 
 
 Forms of stated case, recognizance and other forms relating 
 to stated cases will be found in the appendix. 
 
 AVhere the recognizance was not entered into within the time 
 for making the application, but was completed before the delivery 
 of the case, it was held to be a sufficient compliance with the Rules. 
 Stanhope v. TJiorsby, L. R. 1 C. P. 420, 14 L. T. 332. 
 
 REFUSAL TO STATE A CASE. 
 
 763. If the justice is of opinion that the application is merely frivo- 
 lous, but not otherwise, he may refuse to state a case, and shall on the 
 request of the applicant sign and deliver to him a certificate of such 
 refusal : Provided that the justice shall not refuse to state a case where the 
 application for that purpose is made to him by or under the direction of 
 the Attorney-General of Canada, or of any province. 
 
 i 
 
 764. Where the justice refuses to state a case, it shall be lawful for 
 the applicant to apply to the Court, upon an affidavit of the facts, for a
 
 356 REFUSAL OF JUSTICE TO STATE A CASE. 
 
 rule calling upon the justice, and also upon the respondent, to show cause 
 why such case should not be stated ; and such Court may make such rule 
 absolute, or discharge the application, with or without payment of costs, 
 as to the Court seems meet. 
 
 2. The justice, upon being served with such rule absolute, shall state 
 a case accordingly, upon the appellant entering into such recognizance as 
 hereinbefore provided. 
 
 Form of certificate of refusal will be found in the appendix. 
 
 If the justices aoq/uit, in a case in which they ought to inflict 
 a merely nominal penalty, the High Court is not compelled to 
 order them to state a special case. R. v. Davy, et al., [1899] 2 
 Q. B., at p. 307, 80 L. T. 798. 
 
 In England, there is no appeal from the Divisional Court 
 where they refuse to grant an order nisi for a mandamus to com- 
 pel the magistrate to state a case upon a point of law arising in 
 a criminal cause, or matter. Lord Esher, M.E., in Ex parte 
 Schofield, [1891] 2 Q. B. 429; R. v. Sparling, 21 W. K. 461, 60 
 L. J. M. C. 157. As to ordering a justice to state a case, see R. 
 r. Shiel, (1900) 19 Cox 507. 
 
 When a debatable question of law as to the construction of a 
 statute is involved, the justice cannot refuse to state a case on 
 the ground that the question is merely frivolous. R. v. Pollard, 
 14 L. T. 599. 
 
 Nor can the justice refuse to state a case on the ground that 
 the objection had not been formally brought to his notice, where 
 such an objection goes to the root of the whole matter; and, 
 though he is bound to know the law, the Court will not in such 
 a case give costs of the application to compel him to sate a case. 
 Ex parte Markham, 21 L. T. 748. 
 
 The Court will not express any opinion except upon the facts 
 appearing in the case. St. James v. St. Mary, 29 L. J. M. C. 
 26. 
 
 The duty of the Court is simply to answer the question of law 
 put to them by the magistrate. Buckmaster v. Reynolds, 13 C. B. 
 N. S. 62. 
 
 Where the justices state the grounds for finding the facts, the 
 Court may consider whether they are sufficient in law. Tyrrell 
 v. Flannagan, [1901] 2 Q. B. Ir. 423. 
 
 Where an objection was taken that the justices had improperly 
 received evidence, a rule to state a case was refused. It must 
 appear that the decision was wrong in law. R. v. JJ. Maccles- 
 field, 2 L. T. 352, 13 Q. B. 881.
 
 HEARING OF STATED CASE BY COURT. 357 
 
 A right of appeal must be given by express enactment and 
 cannot be extended by an equitable construction to cases not dis- 
 tinctly enumerated. R. v. Stock, 8 A. & E. 405. 
 
 The case is usually drawn up by the appellants' solicitor, and 
 a copy served on the prosecutor, or respondent, together with a 
 notice of settling the same before the justice; or a memorandum 
 endorsed on the case and signed by the solicitor for the respondent, 
 that he agrees, will be sufficient. The case can then be submitted 
 to the justice and finally settled, and a copy and notice of appeal, 
 as required by paragraph (c) of sub-sec. 2 of sec. 761, served on 
 the other party to the proceeding, viz., the respondent. 
 
 HEARING OF STATED CASE. 
 
 765. The Court to which a case is transmitted shall hear and deter- 
 mine the question or questions of law arising thereon, and shall thereupon 
 affirm, reverse or modify the conviction, order or determination in respect 
 of which the case has been stated, or remit the matter to the justice with 
 the opinion of the Court thereon, and may make such other order in rela- 
 tion to the matter, and such orders as to costs, as to the Court seems fit ; 
 and all such orders shall be final and conclusive upon all parties. 
 
 2. No justice who states and delivers a case shall be liable to any costs 
 in respect or by reason of such appeal against his determination. 
 
 766. The Court for the opinion of which a case is stated shall have 
 power, if it thinks fit. to cause the case to be sent back for amendment : 
 and thereupon the same shall be amended accordingly, and judgment shall 
 be delivered after it has been amended. 
 
 2. The authority and jurisdiction of the Court for the opinion of which 
 a case is stated may, subject to any rules and orders of Court in relation 
 thereto, be exercised by a Judge of such Court sitting in chambers, and as 
 well in vacation as in term time. 
 
 The Court has no authority to say anything further than that 
 the justice was right, or wrong, in his decision, and to answer the 
 questions submitted. No case should be granted unless some 
 doubtful point of law has been raised of sufficient importance to 
 be submitted to the Court. See BLACKBURN. J., in 8t. Botolpli 
 v. White Chapel, 2 L. T., at p. 507; also St. James v. St. Mary, 
 supra, and Buckmaster v. Reynolds, supra. 
 
 Where the case is not sufficiently explicit, it may be sent back 
 for amendment. Crowther v. Boult, 13 Q. B. D. 680; Hodgson 
 v. Little, 16 C. B. N. S., at p. 202; Pedgrift v. Chevalier, 8 C. B. 
 N. S. 246. 
 
 On a mere suggestion that there has been misconduct, or 
 negligence, in drawing up a case, the Court will not send it back 
 for amendment. Townshend v. Read, 4 L. T. 447. 
 
 By sec. 1151 of the Code, it is provided that no action or 
 proceeding shall be commenced, or had, against a justice for
 
 358 COSTS ENFORCEMENT OF CONVICTION BY JUSTICES. 
 
 enforcing a conviction, order or determination affirmed, amended 
 or made by the Court under sec. 765. 
 
 COSTS. 
 
 If the conviction is quashed, as a rule, the costs are given 
 against the prosecutor or respondent. Vendbles v. Hardman, 1 
 E. & E. 79. 
 
 If the appellant drops or abandons his appeal by way of stated 
 case, he will be ordered to pay the costs of the respondent. Crow- 
 ther v. BouU, supra. 
 
 A justice who states and delivers a case cannot be made liable 
 for the costs of the appeal ; it is otherwise if the justice improperly 
 refuses to state a case, he may then be ordered to pay the costs of 
 an application to compel him to state it. P. v. Watson, 48 J. P. 
 149 ; see also sub-sec. 2 of sec. 765. 
 
 ENFORCEMENT OF CONVICTION BY JUSTICES. 
 
 767. After the decision of the Court in relation to any case stated for 
 their opinion, the justice in relation to whose determination the case has 
 been stated, or any other justice exercising the same jurisdiction, shall have 
 the same authority to enforce any conviction, order or determination which 
 has been affirmed, amended or made by such Court as the justice who 
 originally decided the case would have had to enforce his determination 
 if a case had not been stated. 
 
 2. If the Court deems it necessary or expedient any order of the Court 
 may be enforced by its own process. 
 
 768. No writ of certiorari or other writ shall be required for the 
 removal of any conviction, order or other determination in relation to which 
 a case is stated as aforesaid for obtaining the judgment or determination 
 of a superior Court on such case. 
 
 769. Every person for whom a case is stated as aforesaid in respect 
 of any determination of a justice from which he is entitled to an appeal 
 under section seven hundred and forty-nine, shall be taken to have aban- 
 doned his said right of appeal finally and conclusively and to all intents 
 and purposes. 
 
 2. Where, by any special Act. it is provided that there shall be no 
 appeal from any conviction or order, no proceedings shall be taken to have 
 a case stated or signed as aforesaid in any case to which such provision 
 as to appeal in such special Act applies. 
 
 JUSTICES' AND CONSTABLES' FEES UNDER PART XV. OF THE CODE. 
 
 770. The fees mentioned in the following tariff and no others shall be 
 and constitute the fees to be taken on proceedings before justices under 
 this Part: 
 
 Fees to be taken 6y Justices of the Peace or their Clerks. 
 
 1. Information or complaint and warrant or summons $0 50 
 
 2. Warrant where summons issued in first instance 10 
 
 3. Each necessary copy of summons or warrant 10
 
 TAEIFF OF FEES CHAKGEABLE. 359 
 
 4 Each summons or warrant to or for a witness or witnesses. 
 (Only one summons on each side to be charged for in each 
 case, which may contain any number of names. If the justice 
 of the case requires it, additional summonses shall be issued 
 without charge) $0 10 
 
 5. Information for warrant for witness and warrant 50 
 
 6. Each necessary copy of summons or warrant for witness 10 
 
 7. For every recognizance 25 
 
 8. For hearing and determining case 50 
 
 9. If case lasts over two hours 1 00 
 
 10. Where one justice alone cannot lawfuDy hear and determine the 
 
 case the same fee for hearing and determining to be allowed 
 to the associate justice. 
 
 11. For each warrant of distress or commitment 25 
 
 12. For making up record of conviction or order where the same is 
 
 ordered to be returned to sessions or on certiorari 1 00 
 
 But in all cases which admit of a summary proceeding before 
 a single justice and wherein no higher penalty than $20 
 can be imposed, there shall be charged for the record of 
 conviction not more than 50 
 
 13. For copy of any other paper connected with any case, and the 
 
 minutes of the same if demanded, per folio of 100 words .... 05 
 
 14. For every bill of costs when demanded to be made out in detail 10 
 
 (Items 13 and 14 to be chargeable only when there has been 
 an adjudication.) 
 
 Constables' Fees. 
 
 1. Arrest of each individual upon a warrant 1 50 
 
 2. Serving summons 25 
 
 3. Mileage to serve summons or warrant, per mile (one way) 
 
 necessarily travelled 10 
 
 4. Same mileage when service cannot be effected, but only upon 
 
 proof of due diligence. 
 
 5. Mileage taking prisoner to gaol, exclusive of disbursements neces- 
 
 sarily expended in his conveyance 10 
 
 6. Attending justices on trial, for each day necessarily employed in 
 
 one or more cases, when engaged less than four hours 1 00 
 
 7. Attending justices on trial, for each day necessarily employed 
 
 in one or more cases, when engaged more than four hours .... 1 50 
 
 8. Mileage travelled to attend trial (when public conveyance can 
 
 be taken, only reasonable disbursements to be allowed) one 
 
 way per mile 10 
 
 9. Serving warrant of distress and returning same 1 00 
 
 10. Advertising under warrant of distress 1 00 
 
 11. Travelling to make distress or to search for goods to make 
 
 distress, when no goods are found (one way) per mile .... 10 
 
 12. Appraisements, whether by one appraiser or more two cents 
 
 in the dollar on the value of the goods. 
 
 13. Commission on sale and delivery of goods five cents in the 
 
 dollar on the net proceeds. 
 
 Witnesses' Fees-. 
 
 1. Each day attending trial $0 75 
 
 2. Mileage travelled to attend trial (one way) per mile 10 
 
 Interpreter's Fees. 
 
 1. Each day attending trial $2 00 
 
 2. Mileage travelled to attend trial (one way) per mile 10 
 
 A magistrate cannot properly demand fees when the proceed- 
 ings are in respect of an offence which cannot be dealt with sum- 
 marily under this Part. R. v. MeeJian, (No. 2), (1902) 5 C. C. 
 C. 312, 3 0. L. B. 567.
 
 360 LIQUOR LICENSE ACTS DECISIONS UNDER. 
 
 CHAPTER IX. 
 
 
 
 CASES UNDER LIQUOR LICENSE ACTS AND THE CANADA 
 TEMPERANCE ACT. 
 
 The first edition of this work had no chapter or section deal- 
 ing specially with prosecutions for offences under the Liquor 
 License Acts of the various provinces, which are punishable under 
 summary conviction, and, therefore, would properly come within 
 the scope of the last chapter. 
 
 The reason for that omission probably was that the subject is 
 fully dealt with in Tremeear's Liquor Laws of Canada, published 
 in 1904, to which the reader is referred, but it is supposed that it 
 will be useful to magistrates and the legal profession to insert 
 here references to some of the decisions of the Courts not in- 
 cluded in that work or referred to under other headings in the 
 first edition of this work. 
 
 AMENDMENT. 
 
 A summary conviction purporting to be under the Ontario 
 Liquor License Law. for unlawfully allowing liquor to be sold 
 (which is not in terms an offence under the statute) may be 
 amended, if the evidence warrants it, so as to make it a con- 
 viction for selling without a license. 
 
 Such an amendment is permissible under sec. 889 of the 
 Criminal Code made applicable to prosecutions under Ontario laws 
 by provincial enactment. R. v. MeiMeham, 10 C. C. C. 382. 
 
 Although the defendant has failed to appear after summons 
 in a summary conviction matter, the information may be amended 
 to correct the date of the offence, but not to charge a different 
 offence. 
 
 A charge of illegally selling liquor on a date specified is pro- 
 perly amended to charge the illegal sale as of a date four days 
 earlier, and such change of date does not necessarily make it a 
 charge of a different offence. R. v. Tompkins, 12 C. C. C. 552. 
 
 An information under the Liquor License Act (Ont.) charging 
 the sale of liquor to a minor may be amended by adding that the 
 minor was " apparently or to the knowledge of the defendant under 
 the age of twenty-one," although the time for laying a new in- 
 formation for such offence had expired before the amendment 
 was asked.
 
 AMENDMENT AMOUNT OF FINE BREWER'S LICENSE. 361 
 
 Such an amendment involving only the addition of words 
 necessary to describe the offence intended to be charged, but in- 
 completely charged in the information, is not the substitution of 
 another and different offence as to which the prescription may 
 apply. R. v. Ayer, 14 C. C. C. 210. 
 
 Under sec. 105 of the Liquor License Act, the Court on habeas 
 corpus may amend a summary conviction for an infraction thereof 
 by striking out an unauthorized adjudication for further deten- 
 tion in respect of charges of conveying the prisoner to gaol. R. 
 v. Graves (So. 1), 16 C. C. C. 150. See also R. v. Gueriin, 15 
 C. C. C. 251, supra, p. 122, and R. v. Frizell, 22 C. C. C. 214. 
 
 AMOUNT OF FINE. 
 
 Under Part II. of the Canada Temperance Act, which enacts 
 that a fine may be imposed of " not less than $50 " for a first 
 offence, and of " not less than $100 " for a second offence, the 
 magistrate cannot impose a fine of more than $50 for a first 
 offence. Re Richard, 12 C. C. C. 204. 
 
 Under the New Brunswick Liquor License Act, the minimum 
 penalty for selling by a licensee after hours must be imposed, 
 although the conviction is founded upon the statutory presump- 
 tion of the sale, because of a light in the bar-room. 
 
 A summary conviction for a penalty less than the statutory 
 minimum will be set aside on appeal under the New Brunswick 
 Liqiuor Law. R. v. Mclntyre, 14 C. C. C. 43. 
 
 BREWER'S LICENSE. 
 
 A brewer may properly be convicted under a provincial license 
 law for selling liquor without a provincial license, although he 
 holds a license under the Dominion Inland Revenue Act to carry 
 on the trade or business of a brewer. 
 
 Semble, the license under the Inland Revenue Act applies only 
 as a permit to manufacture as regards the excise duties. R. v. 
 Neiderstadt, 10 C. C. C. 292. 
 
 CERTIORARI. 
 
 The deposit of $50, which is a condition of a certiorari under 
 the Quebec License Law (1900), is a deposit in security and not 
 in sequestration.
 
 362 LIQUOll LICENSE CASES CERTIOKARI CLUBS. 
 
 The application for certiorari could not take away from the 
 accused person his option of serving the term of imprisonment to 
 which he had been condemned in the place of such payment. 
 
 Although the writ of certiorari suspended the execution of the 
 sentence, the effect of quashing the writ is merely to render the 
 person convicted liable to the term of imprisonment; and, if he 
 takes that option,, he has a right to the re-imbursement of the 
 deposit representing the fine and costs. Wing v. Sicotte, 10 C. 
 C. C. 171. 
 
 Where there is a right of appeal from the magistrate to a 
 County Court under a liquor license law, a superior Court should 
 refuse certiorari on grounds not going to the jurisdiction of the 
 magistrate, unless there are exceptional circumstances to be con- 
 sidered. Ex parte Damboise, 16 C. C. C. 292. 
 
 DEPOSIT AS SECURITY. 
 See Wing v. Sicotte, supra. 
 
 CHANGE OF TERRITORY UNDER CANADA TEMPERANCE ACT. 
 See R. v. McMullen, 9 C. C. C. 531. 
 
 CLUBS. 
 
 The supplying of the club's liquors by the steward to the mem- 
 bers of an incorporated club at a tariff charge is not a mere dis- 
 tribution of club property amongst the members, but is a sale on 
 behalf of the corporation to the member. R. v. Simmonds, 16 C. 
 C. C. 498, and see note at p. 502. 
 
 Persons who contribute to a fund for the purpose of buying 
 intoxicating liquors in bulk and renting a room wherein to drink 
 the sanie constitute an association or club within sec. 53 of the 
 Ontario Liquor License Act and each of them is liable under that 
 section as for keeping liquor for sale. R. v. Cahoon, 17 C. C. C. 
 659. See also R. v. Byng, 18 C. C. C. 344. 
 
 CONCURRENT LEGISLATIVE POWER. 
 
 The Legislature of the Province of Quebec has no power to 
 repeal any portion of the Temperance Act of 1864 enacted by 
 the former province of Canada; and sec. 97 of the Quebec License 
 Act of 1870, purporting to repeal certain sections thereof, in so
 
 CONVICTIONS FOE SECOND OR THIRD OFFENCE. 363 
 
 far as the same relates to the Province of Quebec and to matters 
 within the control of the Provincial Legislature, is of no effect. 
 
 The fact that the offence was an infraction of the Temperance 
 Act of 1864 does not prevent its being also an offence under a 
 provincial law and punishable under either or both, the federal 
 and provincial jurisdictions to constitute the sale an offence being 
 concurrent. Ex parte O'Neill, 9 C. C. C. 141. 
 
 CONVICTION FOR SECOND OR SUBSEQUENT OFFENCE. 
 
 A conviction for a third offence under the Canada Temperance 
 Act is valid, if it follows the statutory form without reciting that 
 such third offence was committed after information laid for the 
 first offence, if such was in fact the case. R. v. Swan, 8 C. 
 C. C. 86. 
 
 The fact that information was duly laid for the prior offence 
 must be proved in a charge as for a second or third offence under 
 the Canada Temperance Act, where the increased penalty is to be 
 imposed. R. v. Hoare, 12 C. C. C. 1. 
 
 As there are other offences of selling liquor, ex gr., to a minor 
 or interdicted person, unler the Ontario Liquor License Act, an 
 admission by the accused of a previous conviction for selling, with- 
 out specifying the nature of such previous offence, will not suffice 
 to sustain a conviction under that Act for a second offence for 
 selling without a license. 
 
 A defendant charged and convicted of a second offence under 
 the Liquor License Act (Ont.), without proper proof or admission 
 of the prior conviction, is entitled to be discharged on habeas 
 corpus, as the Court is not authorized to amend the conviction by 
 reducing it to one for a first offence. R. v. Simmons, 14 C. C. 
 C. 5. See also R. v. Wellman, 14 C. C. C. 335 ; R. v. Curran, 22 
 C. C. C. 388. 
 
 As to prosecutions in Manitoba for second and subsequent 
 offences, see the special provisions of the amendments to the 
 Liquor License Act made in and now contained in sees. 206-211 
 of ch. 117, R, S. M., 1913. 
 
 PROOF OF PREVIOUS CONVICTION. 
 
 Under the Ontario Liquor License Act, sec. 101 (similar to 
 sec. 115, Canada Temperance Act), the magistrate trying a charge 
 of a second or subsequent offence is prohibited from taking evi- 
 dence as to the prior conviction until after his adjudication of
 
 364 PROOF OF PREVIOUS CONVICTION. 
 
 guilty in respect of the subsequent offence, and non-compliance 
 with the statute deprives the magistrate of jurisdiction. 
 
 The defect in the proceedings consequent upon the admission 
 of evidence of the prior conviction in contravention of the statute 
 cannot be remedied by the magistrate striking out such evidence, 
 nor is his jurisdiction thereby restored. R. v. Nurse, 8 C. C. C. 
 173. 
 
 A certificate that the defendant had been convicted for keeping 
 intoxicating liquor for sale contrary to the Canada Temperance 
 Act is sufficient proof of a previous offence upon which to base 
 a second conviction for keeping for sale, though it does not appear 
 from the certificate, and was not otherwise proved, that such pre- 
 vious conviction was for a first offence. Ex parte Batson, 10 C. 
 C. C. 240. 
 
 On a charge of a second offence of selling liquor without a 
 license, the prior summary conviction must be proved by the 
 record or a certificate of conviction, and oral testimony of wit- 
 nesses at the trial of the first offence, and purporting to prove 
 what conviction was then made, is insufficient. Per Britton and 
 Riddell, JJ., in R. v. Graves (No. 2), "16 C. C. C. 318. 
 
 Where a certificate of a previous conviction of a person of 
 the same name and description as the accused is put in evidence 
 as proof of a previous conviction without specific evidence of 
 identity, and without any question of identity being raised, there 
 is evidence upon which the magistrate may determine whether or 
 not the accused was the person formerly convicted. R. v. Batson, 
 12 C. C. C. 62. 
 
 It is not essential that the accused should be personally brought 
 before the magistrate for the purpose of being asked whether he 
 was previously convicted as alleged and, if the accused is not 
 present, but has been duly summoned, the previous conviction may 
 be proved against him. R. v. Coote, 17 C. C. C. 211. 
 
 The production of a certificate of a summary conviction before 
 the same magistrate giving the name and address of the person 
 convicted, similar to the name and address of the defendant now 
 charged with a second offence, is some evidence of identity on 
 proving that the accused had been previously convicted, without 
 oral evidence to show that the same individual was the defendant 
 in both cases. R. v. Atkinson, 18 C. C. C. 279. 
 
 Where there is no proof, either by admission, or certificate, of 
 the prior offences upon a charge of a third offence of selling in- 
 toxicating liquor without a license under the Liquor License Act
 
 DESTRUCTION OF LIQUORS EVIDENCE. 365 
 
 (Sask.), the conviction imposing a larger penalty than is author- 
 ized for a first offence must be quashed. R. v. Koogo, 19 C. C. 
 C. 56. See R. v. McNutt, 20 G. C. C. 174; also R. v. Matheson, 
 20 C. C. C. 153, 496; R. v. Leach, 14 C. C. C. 375, and R. v. 
 Curran, supra. 
 
 DESTRUCTION OF LIQUORS. 
 
 Where a magistrate makes an order for forfeiture and destruc- 
 tion of liquors without evidence that such liquors were illegally 
 kept for sale, the order should foe quashed upon certiorari. 
 
 The order for destruction is not necessarily a part of the con- 
 viction, but may by statute be embodied in it. R. v. Ing Kon, 14 
 C. C. C. 197. 
 
 An order for destruction of liquors seized and adjudged to 
 have been illegally kept for sale contrary to the Ontario Liquor 
 License Act is valid as an authorization to the officer directed to 
 superintend the destruction, although not reduced to writing. 
 
 The formal order for destruction may be made either separ- 
 ately from the conviction or it may be embodied in the formal 
 conviction. 
 
 The formal order or conviction, as the case may be, may be 
 made up at any time before the return to a certiorari, and this 
 notwithstanding that the order had already been executed. Ing 
 Kon v. Archibald, 14 C. C. C. 201. 
 
 There is nothing in the Canada Temperance Act, E. S. C. 
 1906, ch. 152, to prevent the appointment of the officer who laid 
 the information, for violation of the Act, to carry out an order to 
 destroy liquors seized in the proceeding. R. v. LeBlanc, 21 C. C. 
 C. 221. 
 
 EVIDENCE. 
 
 The statutory presumption under sec. 99 of the Liquor License 
 Act (N.B.) against the occupant of premises where an illegal sale 
 of liquor takes place is a conclusive and not a rebuttable one. 
 
 In order that the statutory presumption against an occupant 
 should arise, the transaction must be shewn to be one of sale, 
 barter or traffic, and not the mere act of a servant complying with 
 a request of a stranger to go out and purchase liquor for him 
 with money then handed to him. 
 
 The evidence of a whisky detective or " spotter," who is shewn 
 to be under a contract of remuneration according to the convic- 
 tions obtained through his efforts, should not receive credence in
 
 366 EVIDENCE IN LIQUOR PROSECUTIONS. 
 
 a liquor law prosecution when the slightest doubt attaches to it. 
 R. v. Rogers, 11 C. C. C. 257. 
 
 See R. v. McElroy, 22 C. C. C. 123, as to the right of the 
 magistrate to believe the evidence given in chief as against the 
 answers brought out on cross-examination. 
 
 Where the depositions in support of a summary conviction for 
 keeping liquor for sale without a license fail to shew the time and 
 place of the alleged offence or that the circumstances deposed to 
 had reference to the time and place stated in the information, the 
 conviction will be quashed for lack of evidence to support the 
 same. R. v. Reedy, 14 C. C. C. 256. 
 
 The fact that the person selling liquors where the Canada 
 Temperance Act is in force did not know that the beverage he 
 sold was intoxicating and believed it to be non-alcoholic, will not 
 constitute a defence to y a prosecution for illegal sale. 
 
 Where it is shewn that the liquor sold was a malt liquor, it is 
 not necessary to prove that it would intoxicate, as all malt liquors 
 are included in the statutory definition of " intoxicating liquors " 
 under the Canada Temperance Act. Ex parte Lindsay, 15 C. 
 C. C. 252. 
 
 Where the evidence for the prosecution under the Canada 
 Temperance Act shewed that the alleged non-alcoholic beverage 
 in question had intoxicated, the jurisdiction of the magistrate to 
 convict on crediting such testimony is not displaced by expert 
 evidence that the percentage of spirits on analysis of the liquor 
 was about one-half of one per cent. Ex parte Horsman, 15 C. 
 C. C. 280. 
 
 Where charges for separate offences at different hours of the 
 same day are laid under a liquor law, the magistrate has the dis- 
 cretion on the trial of one of the charges to rule out questions on 
 cross-examination of the witnesses for the prosecution as to their 
 presence at the time and place of the other offence, and to confine 
 the inquiry to the hours specifically mentioned in the information. 
 
 The proposed questions were not relevant to the issue or proper 
 for the purpose of discrediting the witness. R. v. Butterfield, 15 
 C. C. C. 101. 
 
 On a charge against a license-holder for supplying liquor to a 
 person interdicted by the license inspector as a habitual inebriate 
 under the Liquor License Act (Ont.), the prosecutor must not 
 only prove the notice of interdiction but also that the interdict 
 was in the habit of drinking to excess.
 
 IMPRISONMENT KEEPING LIQUOR FOR SALE. 367 
 
 Where a summary conviction was made without evidence that 
 the interdict was a habitual inebriate, the prosecutor will not be 
 allowed, on the defendant's appeal from the conviction, to supple- 
 ment his case by producing such evidence on the appeal and th-3 
 conviction will be quashed. R. v. Morrison, 15 C. C. C. 215. See 
 also R. v. Sevan, 20 C. C. C. 237. 
 
 HOTEL NOT A PUBLIC PLACE. 
 
 A hotel is not a " public place " within the meaning of eec. 
 13 of 2 Geo. V, eh. 55, amending the Liquor License Act (Ont.) ; 
 such a " public place " must be a street, square, park or other ope'i 
 place. R. v. Cook, 20 C. C. C. 201. 
 
 ILLEGAL DISPOSITION OF LIQUOR. 
 
 See R. v. Clarke, 20 C. C. C. 486, as to the scope and meaning 
 of the word " disposal " as used in the Liquor License Act. 
 
 IMPRISONMENT FOR DEFAULT. 
 
 Under the Canada Temperance Act imprisonment for non-pay- 
 ment of a fine imposed for a first offence may be ordered without 
 the necessity of a distress. R. v. McKinnon, 12 C. C. C. 414. See 
 also R. v. Whiting, 14 C. C. C. 414. 
 
 The provision of the Canada Temperance Act, sec. 100, which 
 fixes the penalty at " not less than $50 or imprisonment for a term 
 not exceeding one month " applies to so limit the term of imprison- 
 ment only, when imposed as a punishment in the first instance, 
 and not when imposed for default of payment of the penalty. 
 
 Where a fine is imposed in the first instance, the punishment 
 in default of payment may be for any term not exceeding three 
 months under Code sec. 872. R. v. Blank, 10 C. C. C. 358. See 
 also R. v. Fraser, 20 C. C. C. 167, and Plante v. Cliche (No 2) 
 20 C. C. C. 186. 
 
 KEEPING LIQUOR FOR SALE. 
 
 The statutory presumption of keeping liquor for sale, which 
 arises upon the finding of liquor under a search warrant where the 
 Canada Temperance Act is in force, is supported by the circum- 
 stances that the liquor was kept concealed in an unusual manner. 
 R. v. McNutt, 11 C. C. C. 26. See also R. v. Nero, 23 C. C. C. 167.
 
 368 LIMITATION OF TIME FOR PROSECUTION. 
 
 An express agent who, as an employee of an express company, 
 receives intoxicating liquor shipped into a county where Part II. of 
 the Canada Temperance Act is in force may be personally liable 
 for keeping liquor for delivery contrary to sec. 127 of that Act 
 as amended, 7-8 Edw. VII. ch. 71. Ex parte Morison, 16 C. C. C. 
 28. 
 
 INFORMATION, SUFFICIENCY OF. 
 
 An information for an offence under the Xova Scotia Liquor 
 License Act upon information and belief only, and not stating the 
 grounds of belief, is authorized by sec. 120 of that Act. R. v. 
 Power, 14 C. C. C. 264. 
 
 On a charge of unlawfully bringing intoxicating liquor into a 
 city where the Canada Temperance Act has been proclaimed, it is 
 not necessary to negative, in the information or conviction, the 
 exceptions contained in sec. 117 of the Canada Temperance Act 
 (amendment of 1908). Ex parte Mitchell, 16 C. C. C. 205. 
 
 LIMITATION OF TIME. 
 
 Where the time of the offence is stated in a summary con- 
 viction as being between two dates, and includes a period prior to 
 the time limit for which information could be laid, the conviction 
 will be quashed for want of jurisdiction if the evidence does not 
 show that the offence was in fact committed within the time limit. 
 Ex parte Hebert, 15 C. C. C. 165. 
 
 An information for an offence under a liquor law, which omits 
 a material ingredient of the offence, cannot be amended by adding 
 the same after the expiry of the statutory limit for bringing a 
 prosecution. 
 
 Prohibition will issue to prevent the magistrate from proceed- 
 ing upon an information so amended after the expiry of the time 
 limit for bringing a charge. R. v. Speed, 17 C. C. C. 24. See 
 also R. v. O'Connor, 20 C. C. C. 75. 
 
 MINORS, SALE TO. 
 
 Under sec. 78 of the Ontario Liquor License Act as amended 
 by 7 Edw. VII. ch. 46, sec. 8, on a charge of selling liquor to a 
 minor, the conviction must shew that the vendee was either known 
 to the vendor to be under 21 or that he was apparently under that 
 age and, where the purchaser of the liquor is of adult stature and
 
 WHO IS AN OCCUPANT SALES BY PHYSICIANS. 369 
 
 weight, it is not sufficient for the prosecutor to shew merely that 
 the purchaser is in fact under 21. R. v. Farrell, 16 C. C. C. 419. 
 
 The doctrine of mens rea does not apply to the offence of a 
 licensee allowing the sale of liquor on the licensed premises to 
 minors, contrary to the Liquor License Act, E. S. X. S. (1900), 
 ch. 100, and the proprietor may be convicted in respect of the 
 prohibited sale made by his bartender without his knowledge and 
 contrary to his orders. R. v. Quirk, 16 C. C. C. 391. 
 
 OCCUPANT OF PREMISES. 
 
 The owner of hotel premises which are leased by him to a 
 tenant is not an " occupant " of the hotel within sec. 50 of the 
 Ontario Liquor License Act, as regards illegal sales of liquor made 
 without his knowledge or consent, although he resides in the hotel 
 as a boarder. R. v. Irish, 14 C. C. C. 458. 
 
 The effect of the Quebec Liquor License Act, as regards a 
 charge thereunder against a proprietor of refilling empty bottles 
 on the licensed premises, is that, if the offence is committed by any 
 person whatsoever in the employ of the proprietor, tenant or occu- 
 pant of the premises, or who has been suffered to be there, it is 
 conclusive evidence that it was done with the authority and under 
 the directions of such proprietor, tenant or occupant. White v. 
 Leek, 18 C. C. C. 337. See also R. v. Bradley, 19 C. C. C. 110, 
 and R. v. Rogers, 11 C. C. C. 257. 
 
 PHYSICIANS, SALES BY. 
 
 A physician is not liable for selling liquor without a license 
 under the Quebec License Act in respect of intoxicating liquor pre- 
 scribed and sold by him in good faith. R. v. Chicoyne, 8 C. C. C. 
 50,7. 
 
 There must be a separate prescription for each authorized sup- 
 ply to be filed and recorded under sec. 125 of the Canada Temper- 
 ance Act. R. v. Nugent, 15 C. C. C. 277. 
 
 See also R. v. McAllister, 22 C. C. C. 166. 
 
 PLACE OF SALE OR OFFENCE. 
 
 The place of sale is not necessarily the city in which an order 
 for liquor was accepted by the liquor dealer, but it may be in 
 
 C.C.P. 24
 
 370 PLACE OF SALE OE OFFENCE RESTAURANT KEEPER. 
 
 another city in which the liquor was delivered to the buyer out of 
 a stock there kept. R. v. Bigelow, 9 C. C. C. 322. 
 
 A summary conviction is not necessarily bad because the par- 
 ticular part of the county in which the offence was committed is 
 not specified, provided the offence is stated to have been committed 
 in the county and the convicting magistrate had jurisdiction 
 throughout the whole county. R. v. Meikleham, 10 C. C. C. 382. 
 
 The offence of unlawfully causing intoxicating liquor to be 
 shipped into a place where the Canada Temperance Act has been 
 proclaimed is at least partly committed in the latter place, and 
 the magistrate there has jurisdiction to summarily convict for the 
 offence a person resident in another county who appears before him 
 charged with the offence. 
 
 Such jurisdiction may be supported under Code sec. 584 (b) 
 and 707, as well as under sec. 127 of the Canada Temperance Act 
 (amendment of 1908). Ex parte Mclntyre, 16 C. C. C. 38. 
 
 PREVIOUS CONVICTION. 
 See pages 363, 364. 
 
 RESTAURANT KEEPER. 
 
 A restaurant keeper who procures liquor for a guest in a non- 
 license town, but is unable to state from whom his messenger ob- 
 tained the liquor, is properly convicted under the Quebec License 
 Law, which makes delivery of the liquor equivalent to a sale 
 thereof except where the delivery is gratuitous. R. v. Gunn, 10 
 C. C. C. 148. See, also, O'Rullivan v. Nichm, 23 C. C. C. 169. 
 
 SALE OR DISPOSAL, WHAT AMOUNTS TO. 
 
 Where admission tickets for a dance are sold with the under- 
 standing that the holders are entitled to free beer thereat, and beer 
 is supplied accordingly by the proprietors entitled to share in any 
 profits realized, such disposal of the liquor constitutes a sale 
 thereof by the proprietors, and, if unlicensed, they are properly 
 convicted under a liquor license law for unlawfully selling liquor 
 without a license. R. v. Huber, 14 C. C. C. 447. 
 
 Bringing intoxicating liquor into a city where the Canada 
 Temperance Act is in force, in contravention of the amending sec- 
 tions of 1908, is an unlawful " disposal " of liquor within tho 
 terms of sec. 138 of the Act. Ex parte Mitchell, 16 C. C. C. 205.
 
 LOCAL OPTION DISTRICT SEARCH WARRANT. 371 
 
 SALE IN LABSER QUANTITIES THAN LICENSE PERMITS. 
 See R. v. Campbell, 20 C. C. C. 490. 
 
 SALE IN LOCAL OPTION DISTRICT. 
 
 A conviction for selling liquor or keeping liquor for sale, in 
 contravention of a local option municipal by-law prohibiting the 
 issue of liquor licenses, is a conviction under the Liquor License 
 Act for selling or keeping for sale " without a license " and is 
 subject to the same limitations as to review on certiorari and 
 habeas corpus as a conviction against a non-licensee in a district 
 in which licenses are issued. Re Leach and Fogarty, 18 C. C. C. 
 487. 
 
 SALE or SACRAMENTAL WINE. SALE ON A DOCTOR'S CERTIFICATE. 
 See R. v. McAllister, supra. 
 
 SEARCH WARRANT. 
 
 A search warrant for liquors may be issued under the Canada 
 Temperance Act (amendment of 1888) without first laying a 
 charge against the custodian of the liquors for keeping them for 
 sale. R. v. Townsend (No. 2), 11 C. C. C. 115, 12 C. C. C. 509. 
 See also Townsend v. BecJcwith, 14 C. C. C. 353. 
 
 The invalidity of the information for a search warrant, issued 
 under the Canada Temperance Act, cannot be raised on certiorari 
 in respect of a conviction under a separate information against 
 the same person for illegally keeping liquor for sale. 
 
 If the evidence is sufficient to prove the keeping of liquor for 
 sale, the conviction will not be quashed because the liquor in ques- 
 tion was seized under a search warrant under the Canada Temper- 
 ance Act outside of the city limits and the information and con- 
 viction for keeping are expressed to be for an offence within the 
 city, if the magistrate had jurisdiction both in the city and at the 
 place of seizure. Ex parte Wilson, 15 C. C. C. 264. 
 
 The fact that the informant as chief of police laid the infor- 
 mation for and executed a search warrant under the Canada Tem- 
 . perance Act will not invalidate a summary conviction for keeping 
 liquor for sale, although based upon the result of the search under 
 the warrant. Ex parte Dewar, 15 C. C. C. 273.
 
 372 SUSPENDING SENTENCE TWO BARS. 
 
 A search warrant under the Canada Temperance Act, regular 
 and valid on its face and issued by the proper officer, is, until 
 quashed, a justification to the officer seizing or detaining the liquor 
 in accordance with the direction of the warrant, although the in- 
 formation did not authorize its issue, and it might have been 
 quashed or set aside on that ground had application been made. 
 McKeen v. Colpitts, 15 C. C. C. 488. See, however, Johnston v. 
 McDougall, 17 C. C. C. 58, and page 92, ante. 
 
 As to liquor license inspector searching house for liquor sup- 
 posed to be kept in violation of law without a search warrant, see 
 R. v. Matheson, 21 C. C. C. 312. 
 
 SUMMONS AS FOE SECOND OFFENCE. 
 See R. v. Crouse (No. 2), 21 C. C. C. 243. 
 
 SUSPENDING SENTENCE. 
 
 Where a liquor license statute imposes a minimum and maxi- 
 mum penalty for the offence of selling liquor without a license, 
 the magistrate is bound upon a plea of guilty to impose at least 
 the minimum sentence and he has no power to suspend sentence 
 upon payment of the costs of the prosecution. 
 
 The order of a magistrate illegally suspending sentence upon 
 certain conditions after a plea of guilty may be removed into a 
 Superior Court by certiorari for the purpose of being quashed at 
 the instance of the prosecutor. R. v. Verdon, 8 C. C. C. 352. 
 
 Two BARS. 
 
 In R. v. Lewis, 10 C. C. C. 184, it was held by HOLT, Co.J., 
 that the erection and use of an additional temporary bar in a 
 licensed hotel for one day only is not a " keeping " of more than 
 one bar in violation of sec. 65 of the Liquor License Act, E. S. 0. 
 ch. 245, and that a temporary bar so used in the hotel hall ad- 
 joining the regular bar-room does not constitute the hall a bar 
 room. 
 
 But in R. v. Genz, 22 C. C. C. 110, it was held that the main- 
 tenance of a separate extra bar in a licensed hotel, although tem- 
 porary and for one day only, is an infraction of the Liquor License 
 Act, E. S. 0. 1897, ch. 245, sec. 65, the inhibiting words of the 
 Act that not more than one bar shall be "kept," meaning that
 
 UNCERTAINTY AS TO DATE OF OFFENCE. 373 
 
 more than one bar should not be used, and not involving the idea 
 of permanency or continued user. R. v. Lewis was dissented from. 
 
 UNCERTAINTY AS TO DATE OF OFFENCE. 
 
 A summary conviction under the Quebec Liquor License Act 
 in respect of a single offence of selling without a license on or 
 about a specified date " and at divers times before and since " is 
 not bad for uncertainty where by statute the time of the offence 
 is sufficiently proved, if shown to be within the four months' limi- 
 tation allowed for prosecution. 
 
 Such conviction would be an answer to another charge for an 
 offence committed on or about the date specified. R. v. Dubuc, 
 15 C. C. C. 353.
 
 374 SUNDAY OBSERVANCE LAWS. 
 
 CHAPTER X. 
 
 SUNDAY OBSERVANCE LAWS LORD'S DAY ACTS. 
 
 This" is another subject not specially noticed in the former 
 edition of this work, and, as offences against these statutes are 
 punishable on summary conviction, it has been thought advisable 
 to insert here a short chapter pointing out some of the recent de- 
 cisions of the Courts in cases arising under them. 
 
 ATTORNEY-GENERAL'S CONSENT TO PROSECUTION. 
 
 The leave of the Attorney-General is a condition precedent to 
 the commencement of a prosecution under the Lord's Day Act, 
 and a magistrate has no jurisdiction to take the information unless 
 leave has already been granted. 
 
 Evidence of such leave must appear in the proceedings before 
 the magistrate, and in its absence the prosecutor will not be per- 
 mitted, upon a certiorari application, to prove that leave had been 
 granted before the information was laid. R. v. C. P. Ey. Co., 13 
 C. C. C. 549. 
 
 The consent for the commencement of a prosecution may be 
 given by a member of the provincial executive council as acting 
 attorney-general and his authority need not be shewn, since it 
 will be presumed he was properly appointed to act in such 
 capacity. 
 
 It is not essential that the attorney-general's fiat should be in 
 evidence at the trial as part of the case for the prosecution, the 
 absence of such consent being a matter of defence. R. v. Thomp- 
 son, 22 C. C. C. 78. R. v. C. P. Ry. Co., supra, distinguished. 
 
 BARBER'S SHOP KEEPING OPEN. 
 
 A conviction for " keeping a barber's shop open " on Sunday, 
 contrary to a municipal by-law, cannot be supported upon the 
 mere admission of the accused, when called upon to plead, that 
 he had shaved customers in his shop on the day named. 
 
 Sembh, a barber who exercises his trade at his shop with the 
 doors barred cannot be said to be "keeping open." Re Lambert, 
 4 C. C. C. 533.
 
 BY-LAWS, UNSEASONABLE OR ULTRA VIRES. 375 
 
 BY-LAWS, UNREASONABLE OR ULTRA VIRES. 
 
 A municipal by-law as to Sunday observance which exceeds in 
 its prohibition the terms of the provincial law by including classes 
 of persons not included by the latter is too wide in its scope, and 
 is void for unreasonableness. R. v. Petersky, 1 C. C. O. 91. 
 
 Montreal City By-law No. 281, permitting the sale on Sunday 
 of " fruits, cigars, confectionary and temperance beverages " by 
 all persons who sell all these things and are not engaged in trade 
 is invalid as arbitrary and unjust, because it does not authorize 
 the sale of tobacco as well as cigars, and because it does not ex- 
 tend to all persons who are engaged in the same business. City 
 of Montreal v. Fortier, 6 C. C. C. 340. 
 
 Where a by-law passed in conformity with a provincial statute 
 purports to authorize certain Sunday sales of fruit and temper- 
 ance beverages, the provincial statute operates as a de facto 
 authority, which constitutes a good defence to a penal prosecu- 
 tion in respect of acts, which such legislation purports to authorize, 
 committed prior to the legislation being so declared ultra vires. 
 Kol-oliades v. Kennedy, 18 C. C. C. 495. 
 
 The Lord's Day Act, E. S. C. 1906, ch. 153, by the proviso in 
 sec. 5, enables a province to reduce the scope or mitigate the 
 severity of tbe general prohibition in respect of the topics men- 
 tioned therein, but does not clothe the province with power either 
 itself to deal generally with the matter of Sunday observance or 
 to .confer such powers 011 municipalities so as to enlarge the scope 
 of the Dominion Act; and a conviction under a municipal by-law 
 so framed under the Municipal Act, E. S. B. C. 1911, ch. 170, 
 cannot be sustained. R. v. Waldon, 22 C. C. C. 122, 405. 
 
 i 
 CAB DRIVING. 
 
 Cab-driving on Sunday is not an offence by the cab-driver 
 under the Lord's Day Act of Ontario (E, S. 0. 1897, ch. 246; 
 E. S. 0. 1S87, ch. 203). 
 
 A conviction for doing worldly labour on Sunday contrary to 
 the Lord's Day Act is void for uncertainty, unless the acts con- 
 stituting the offence are specified. R. \. Somers, I C. C. C. 46. 
 
 CIGARS SALE Or. 
 
 In R. v. Lee, 17 C. C. C. 190, it was held by MORSON, Co.J., 
 that tobacco is a drug within the exception of sales for drugs for 
 the relief of sickness and suffering, contained in the Lord's Day
 
 376 SALE OF CIGARS, ICE CREAM, CANDIES, ETC. 
 
 Act, R. S. 0. 1906, ch. 153, sec. 12, and a druggist may legally 
 sell cigars and tobacco on Sunday upon the assumption that they 
 are required for such purposes. But in R. v. Wells, 18 C. C. C. 
 377, it was held by MIDDLE-TON, J., that it is an offence under the 
 Ontario Lord's Day Act, C. S. U. C. ch. 104, for a druggist to 
 sell cigars on Sunday to all parties asking for them; such sales 
 are not protected by the exemption of " drugs and medicines " in 
 the statute. 
 
 The sale of cigars in a hotel on Sunday, otherwise than in 
 connection with, and as an incident to, a meal, is contrary to the 
 provisions of the Lord's Day Act, R. S. C. 1906, ch. 153, but a 
 hotel steward, taking no part in the running of the cigar stand, 
 is improperly convicted, under sec. 5, of carrying on his " ordinary 
 calling " in respect of Sunday sales there made, although he might 
 be liable, had the charge been made under sec. 14, if he were the 
 employer of the cigar stand attendant, and had authorized and 
 directed that the stand should be open on Sunday. R. v. Walsh, 
 22 C. C. C. 145. 
 
 FARMER BUILDING FENCES. 
 
 A farmer who builds fences on his farm on a Sunday does not 
 thereby infringe the Lord's Day Ordinance (N.W.T.), such em- 
 ployment not being ejusdem generis with that of a mechanic, 
 workman or labourer. R. v. Hamren, 7 C. C. C. 188. 
 
 ICE CREAM, CANDIES, &c., SALE OF. 
 
 Ice cream is a food and the keeper of a victualling house may 
 lawfully sell the same to his customers on Sunday, whether or 
 not other foods are supplied therewith. R. v. Albertie, 3 C. C. 
 C. 356. 
 
 A confectioner whose business does not in fact include the 
 supplying of meals will not. by taking out a municipal victualling 
 house license, become privileged to sell ice cream preparations on 
 Sunday, although a similar sale by a person actually conducting 
 a victualling house would be exempt under the Sunday observance 
 statutes. R. v. Sdbine, 8 C. C. C. 70. See R. v. Stinson, 10 C. 
 C. C. 16. Also R. v. Weatheral, 18 C. C. C. 372; R. v. Wells, 18 
 C. C. C. 377, and R. v. Brooker, 22 C. C. C. 146. 
 
 NEWSPAPERS SALE OF. 
 
 A newsdealer who sells newspapers on Sunday is liable to fine 
 as for an infraction of the Ontario " Lord's Day Act," C. S. U. C., 
 ch. 104.
 
 POOL ROOMS SHOPS STORES THEATRES. 37? 
 
 A newsdealer is a " tradesman " within the meaning of that 
 statute. R. v. Anderson, 10 C. C. C. 144. 
 
 PLAYING CARDS FOR MONEY. 
 
 The unrepealed Lord's Day Act, C. S. U. C., ch. 104, sec. 3, 
 in force in Ontario, makes it a criminal offence to be engaged in 
 playing cards for money in a private place, on a Sunday. R. v. 
 Quid-, 17 C. C. 0'. 61. 
 
 POOL ROOMS. 
 
 In Re Fisher, 9 C. C. C. 453, Dubuc, C.J., dismissed an appli- 
 cation to quash a by-law requiring pool rooms to be closed on 
 Sunday, which application was hased on the objection that the 
 by-law was ultra vires, because it related to Sabbath observance, 
 and was evidently passed in order to secure the observance of 
 Sunday, the Chief Justice holding that the by-law was good, as 
 the power conferred upon the municipality of regulating and 
 governing pool rooms included the conditions as to time and other- 
 wise under which the licensee was to have the benefit of the license. 
 This decision is also reported in 41 C. L. J. 622. 
 
 SALE OF LAND. 
 
 An agreement for the sale of land made on Sunday in "British 
 Columbia is illegal as contravening sec. 5 of the Lord's Day 
 Act (Canada). Simpson v. ProestJer. 21 C. C. C. 415. 
 
 STORES AND SHOPS SALES IN. 
 
 The Quebec Sunday Observance Act, 7 Edw. VIT, ch. 42, is 
 not in conflict with the Dominion Lord's Day Act, R. S. C. 1906, 
 ch. 153, and, being recognized as valid by the Dominion statute, 
 the provincial statute is not subject to objection on the ground 
 that it is ultra vires. R. v. Panos (No. 1), 14 C. C. C. 291; R. v. 
 Panos (No. 2), 14 C. C. C. 408. 
 
 THEATRES, &c. PERFORMANCES IN. 
 
 The proprietor of a moving picture show who keeps his amuse- 
 ment hall open on Sundays as on week days, and charges an ad- 
 mission fee. thereby pursues his business or calling for gain on 
 Sunday in contravention of the Quebec Sunday Observance Act 
 (1907), sec. 2. R. v. Ouimet, 14 C. C. C. 136."
 
 378 PERFORMANCES IN THEATRES ULTRA VIRES STATUTES. 
 
 In construing penal statutes of the Province of Quebec, 
 which are enacted concurrently in both the English and French 
 languages, that version is to be taken which is most favourable to 
 the accused. 
 
 By carrying on a " moving picture " show on Sunday, at which 
 an admission fee is charged, the proprietor thereof does not violate 
 the Quebec Sunday Observance Act, prohibiting the pursuit of any 
 business or calling (exercer aucun negoce ou metier), as the cor- 
 responding words of the French version of the statute are 
 restricted to the/ sale of goods, mercantile affairs and the manual 
 occupations. 
 
 An exhibition of " moving pictures " showing events in the 
 life of Napoleon Bonaparte, without verbal explanation or musical 
 accompaniment, is not a theatrical performance within the pro- 
 hibition of that statute. R. v. Clmrron, 15 C. C. C. 241. 
 
 A municipal by-law of the City of Quebec which orders the 
 closing, on Sundays, of theatres and moving picture shows, under 
 penalty, is valid under the peace, order and good government 
 clause of the City Charter granted by the late Province of Canada 
 before Confederation, and which is still in force. 
 
 Such charter and the municipal by-laws thereby authorized are 
 a part of the provincial law within the saving clause (sec. 16) 
 of the federal statute, the Lord's Day Act, and are not repealed 
 or varied by the latter statute. Treviblay \. City of Quebec, 16 
 C. C. C. 487. 
 
 ULTRA VIRES STATUTES CONSTITUTIONAL LAW. 
 
 A provincial statute relating ito criminal law passed before Con- 
 federation becomes as to that province a part of the criminal law 
 of Canada, and is subject to repeal or amendment by a Dominion 
 statute only. 
 
 A Sunday observance law of Nova Scotia passed before Con- 
 federation, which applied to individuals only, cannot be amended 
 by the legislature of that province so as to apply to corporations, 
 and a provincial Act purporting to so amend was held to be ultra 
 vires. R. v. Halifax Electric Tramway Co., 1 C. C. C. 424. 
 
 The Ontario "Lord's Day Act," E. S. 0. 1897, ch. 246, is 
 ultra vires of the Ontario Legislature, as the subject matter thereof 
 comes under the classification of " criminal law," which, by the 
 British North America Act, is under the exclusive legislative 
 Authority of the Parliament of Canada. Attorney-General v. 
 Hamilton Street Railway, 7 C. C. C. 326.
 
 ULTKA VIBES STATUTES CONSTITUTIONAL LAW. 379 
 
 See also notes to this case commencing at p. 332. 
 
 See Re Lord's Day Act, 16 O. C. C. 459, a decision of the 
 Supreme Court of Canada that the Deputy Attorney-General has 
 no authority to grant the leave of the Attorney-General required 
 for a prosecution for a violation of the Lord's Day Act. 
 
 See also Kokoliadies v. Kennedy, 18 C. C. C. 495, reversing on 
 appeal Kennedy v. Kokoliadies, 17 C. C. C. 4. 
 
 The Act, 7 Edw. VII. (Que.), eh. 42, as amended by the 
 statute 9 Edw. VII (Que.), ch. 51, which, among other things, 
 prohibits, under penalty, the giving of theatrical performances on 
 Sunday for gain, except in case of necessity or urgency, is void, 
 because it is criminal legislation which, under sec. 91, sub-sec. 27, 
 of the British North America Act, is exclusively within the power 
 of the Dominion Parliament to enact. Ouimet v. Bazin, 20 C. 
 C. C. 458. 
 
 See also Audette v. Daniel, 21 C. C. C. 403, following Ouimet 
 v. Bazin, supra. 
 
 A conviction against a restaurant keeper under the Act respect- 
 ing the Observance of the Lord's Day, C. S. N. B., ch. 107, for 
 selling meals on Sunday, will be set aside on the ground that such 
 Act was ultra vires of the Provincial Legislature. R. v. Marsh, 21 
 C. C. C. 413. 
 
 See also R. v. Laity, 21 C. C. C. 417, as to the constitutionality 
 of the Sunday Observance Act of British Columbia, passed in 
 1888. See also R. v. Waldon, supra. R. v. Panos (No. 1), 14 C. 
 C. C. 291, and R. v. Panos (No. 2), 14 C. 0. C. 408. 
 
 In R. v. The Stadium, 23 C. C. C. 84, it was held that rights as 
 to the doing of certain things on Sunday conferred upon an athletic- 
 club by legislation of the Province of Quebec, previous to the Lord's 
 Day Act, E. S. C. 1906, ch. 153, were not taken away by that Act.
 
 380 SUMMARY TRIALS. 
 
 CHAPTER XI. 
 
 SUMMARY TRIAL OF INDICTABLE OFFENCES. 
 Part XVI. of the Code. 
 
 The object and intention of the provisions of this part of the 
 Code is to provide an expeditious mode of trying indictable 
 offences, in order that time and expense may be saved, and that 
 an opportunity may be offered to persons charged with such 
 offences of taking a summary trial without having to go through 
 the formality of a preliminary inquiry and then trial by a jury, 
 or by a County Court Judge under the provisions of Part XVIII. 
 of the Code. 
 
 As originally framed, these summary trials were restricted to 
 the class of cases mentioned in sees. 773, 774, 775 and the first 
 part of sec. 777, these provisions being taken from E. S. C., ch. 
 176, and their origin is no doubt based upon the English Sum- 
 mary Jurisdiction Act of 1879. 
 
 By 63-64 Viet., ch. 46 (Canada), sec. 776 was added, and by 
 sec. 3 of the same Act, the very important provisions of sub-sec. 2 
 of sec. 777 were also added. 
 
 These several sections require to be very carefully considered, 
 and magistrates should make themselves thoroughly conversant 
 with their provisions before proceeding under them. 
 
 As at present framed, the provisions of Part XVI. are cer- 
 tainly somewhat involved and confusing, and it seems a pity that 
 when the Code was revised in 1906 tKe whole of Part XVI. was 
 not recast and simplified. 
 
 The questions of the jurisdiction exercised under these sections, 
 and of the punishment to be awarded under convictions made for 
 offences tried summarily by magistrates, have been the subject of 
 many decisions in the Courts of the different provinces, as will 
 appear when the various cases are cited, and some of these de- 
 cisions are not easily to be reconciled. 
 
 The trend of recent amendments is to enlarge the scope and 
 powers of city magistrates, and we think this is wise, both in the 
 interests of efficiency and economy in the administration of jus- 
 tice, and also in the interest and well-being of those who are un- 
 fortunate enough to bring themselves within the pale of the law.
 
 WHAT MAGISTRATES MAY HOLD SUMMARY TRIALS. 381 
 INTERPRETATION. 
 
 771. In this Part, unless the context otherwise requires, 
 (a) "magistrate" means and includes, 
 
 (i) in the provinces of Ontario, Quebec and Manitoba, any re- 
 corder, Judge of a County Court if a justice of the peace, com- 
 missioner of police, Judge of the sessions of the peace, and police 
 magistrate, district magistrate, or other functionary or tribunal, 
 invested by the proper legislative authority with power to do 
 alone such acts as are usually required to be done by two or 
 more justices, and acting within the local limits of his or of 
 its jurisdiction. 
 
 (ii) in the provinces of Nova Scotia and New Brunswick, any 
 recorder, Judge of a County Court, stipendiary magistrate or 
 police magistrate, acting within the local limits of his jurisdic- 
 tion, and any commissioner of police and any functionary, tri- 
 bunal or person invested by the proper legislative authority with 
 power to do alone such acts as are usually required to be done 
 by two or more justices of the peace. 
 
 (iii) in the provinces of British Columbia, and Prince Edward 
 Island, any two justices sitting together, and any functionary 
 or tribunal having the powers of two justices. 
 
 (iv) in the provinces of Saskatchewan and Alberta, a Judge of 
 any district Court or any two justices or any police magistrate 
 or other functionary or tribunal having the powers of two jus- 
 tices and acting within the local limits of his or its jurisdiction. 
 
 (v) in the Northwest Territories, any stipendiary magistrate, 
 any two justices sitting together and any functionary or tribunal 
 having the powers of two justices. 
 
 (vi) In the Yukon Territory, any Judge of the Territorial Court, 
 any two justices sitting together and any functionary or tribunal 
 having the powers of two Justices. 
 
 (vii) in all the provinces, where the defendant is charged with 
 any of the offences mentioned in paragraphs (a) and (/) of 
 section seven hundred and seventy-three, any two justices sitting 
 together ; 
 
 (6) "the common gaol or other place of confinement," in the case of 
 any offender whose age at the time of his conviction does not, in the 
 opinion of the magistrate, exceed sixteen years, includes any reform- 
 atory prison provided for the reception of juvenile offenders in the 
 province in which the conviction referred to takes place, and to 
 which by the law of that province the offender may be sent ; and, 
 
 (c) " property " includes everything within the meaning of " valuable 
 security," as defined by this Act. 
 
 2. In any case where the value of any valuable security is necessary 
 to be determined it shall be reckoned in the manner prescribed by section 
 four. 
 
 By paragraph (b) of sec. 29 of the Interpretation Act, R. S. 
 C., ch. 146, it is provided that a reference in any Act to The Sum- 
 mary Trials Act shall be construed as a reference to Part XVI. 
 of the Criminal Code. 
 
 From a careful perusal of sec. 771, it will be noted that the 
 word " magistrate " in this part has a different meaning in the 
 different provinces. 
 
 For instance, in Ontario, Quebec and Manitoba, it includes " a 
 Judge of the County Court if a justice of the peace," whereas in
 
 382 JURISDICTION OF MAGISTRATES IX DIFFERENT PROVINCES. 
 
 Nova Scotia and New Brunswick, it means any Judge of a County 
 Court, whether he is a justice of the peace or not. 
 
 It expressly includes a commissioner of police only in Ontario, 
 Quebec, Manitoba, Nova Scotia and New Brunswick, but not in 
 the other provinces or territories, unless he would by the local 
 legislation have the powers of two justices. 
 
 Stipendiary magistrates are not mentioned per se as being in- 
 cluded in Ontario, Quebec, Manitoba, Saskatchewan, Alberta, 
 British Columbia or the Yukon, unless the}' can be classed under 
 the head of '' other functionary or tribunal invested by the proper 
 legislative authority with power to do alone such acts as are usu- 
 ally required to be done by two or more justices," etc. 
 
 Stipendiary magistrates in these provinces certainly come 
 within this category, yet why not mention them specifically in 
 paragraph (i.) as they are in paragraphs (ii.) and (v.) ? 
 
 There can be no doubt that stipendiary magistrates are in- 
 cluded in all the provinces, otherwise sec. 777 would be incon- 
 sistent with, and repugnant to, sees. 771-773. In sec. 777, it will 
 be noticed that stipendiary magistrates are specifically mentioned, 
 and, being given this extended jurisdiction by sec. 777, they are 
 certainly also clothed with the limited powers given by sec. 773. 
 
 In British Columbia, Prince Edward Island, the Northwest 
 Territories and Yukon Territory, magistrate includes "any two 
 justices sitting together." And in Saskatchewan and Alberta, 
 " any two justices." The words " sitting together " are omitted 
 in paragraph iv., the draughtsman thinking no doubt these words 
 were superfluous: perhaps they are, but they should either be 
 omitted in all the paragraphs or included also in that relating to 
 Saskatchewan and Alberta. Two justices cannot properly try a 
 case unless they are sitting together, and yet, in the absence of an 
 express enactment to this effect in paragraph iv., a question as to 
 jurisdiction might arise. 
 
 And in all the provinces where the defendant is charged with 
 any of the offences mentioned in paragraphs (a) and (f) of sec. 
 773, a magistrate includes and means two justices sitting together. 
 
 Paragraph (a) of sec. 773 relates to theft, or obtaining money 
 or property by false pretences, or unlawfully receiving stolen pro- 
 perty, where the value of the property does not exceed $10. 
 
 A charge of assault occasioning actual bodily harm, which is 
 punishable as an indictable offence under Code sec. 295, is not 
 covered by paragraph (c) of sec. 773, " unlawful wounding or
 
 VALUABLE SECURITY JURISDICTION. 383 
 
 inflicting grievous bodily harm," although it is not so serious an 
 offence, and, therefore, a magistrate having jurisdiction only under 
 sec. 773 cannot try such a charge summarily, even with the con- 
 sent of the accused. R. v. Sharpe, 18 C. C. C. 132. But see, 
 contra, R. v. Martinuik, 22 C. C. C. 275, where, however, the exact 
 point decided in R. v. Sharpe is not discussed. See, also, R. v. 
 Morton, 23 C. C. C. 172; R. v. ProTcopase, 23 C. C. C. 189. 
 
 And paragraph (f) relates to keeping a disorderly house under 
 sec. 228. 
 
 By sub-sec. 2, the values of valuable securities are to be de- 
 termined in the manner prescribed by sec. 4 of the Code, which 
 is as follows : 
 
 4. Valuable security shall, where value is material, be deemed to be 
 of value equal to that of the unsatisfied money, chattel personal, share, 
 interest or deposit, for the securing or payment of which or delivery or 
 transfer or sale of which, or for the entitling or evidencing title to which, 
 such valuable security is applicable or to that of such money or chattel 
 personal, the payment or delivery of which is evidenced by such valuable 
 security. 
 
 APPLICATION OF PART XVI. 
 
 772. Nothing in this Part shall affect the provisions of Part XVII., 
 and this Part shall not extend to persons punishable under that Part so 
 far as regards offences for which such persons may be punished thereunder. 
 
 Part XVII. relates to the trial of juvenile offenders for indict- 
 able offences. 
 
 JURISDICTION. 
 
 773. Whenever any person is charged before a magistrate, 
 
 (a) with theft, or obtaining money or property by false pretences, 
 or unlawfully receiving stolen property, where the value of the pro- 
 perty does not, in the judgment of the magistrate, exceed ten dol- 
 lars ; or, 
 
 ( 6 ) with attempt to commit theft ; or, 
 
 (c) with unlawfully wounding or inflicting grievous bodily harm upon 
 any other person, either with or without a weapon or instrument ; or, 
 
 (d) with indecent assault upon a male person whose age does not, in 
 the opinion of the magistrate, exceed fourteen years, when such 
 assault is of a nature which cannot, in the opinion of the magistrate, 
 be sufficiently punished by a summary conviction before him under 
 any other Part ; or with indecent assault upon a female, not amount- 
 ing, in the magistrate's opinion, to an assault with intent to com- 
 mit a rape ; or, 
 
 (e) with assaulting or obstructing any public or peace officer engaged 
 in the execution of his duty, or any person acting in aid of such 
 officer ; or, 
 
 (/) with keeping a disorderly house under section 228; or, 
 
 (g) with any offence under section two hundred and thirty -five ; 
 
 the magistrate may, subject to the subsequent provisions of this Part, hear 
 
 and determine the charge in a summary way.
 
 384 MAGISTRATES WITH RESTRICTED JURISDICTION. 
 
 The '"magistrate" referred to in this section includes and 
 means magistrates as defined by sec. 771. And in all the pro- 
 vinces any two justices of the peace sitting together have jurisdic- 
 tion to try offenders charged under paragraphs (a) and (f). And 
 it is only in British Columbia, Prince Edward Island, Saskatche- 
 wan, Alberta, the Northwest Territories and the Yukon Territory 
 that two justices of the peace, sitting together, have jurisdiction 
 to try the offences enumerated in the other paragraphs of this 
 section. 
 
 The question has been raised as to whether the word " theft " 
 in this section includes " theft from the person," and it has been 
 the subject of judicial inquiry and decision. 
 
 In R. v. Conlin, (1897) 1 C. C. C. 41, BOYD, 0., in his judg- 
 ment, at p. 45, says : " I favour the argument of Mr. DuVernet, 
 that the word 'theft/ as used in sec. 783 (now sec. 773), is of 
 generic import, and is meant to cover the case of 'stealing from 
 the person/ etc." 
 
 The definition of the word "theft," as used in sec. 793 (now 
 773), was not decisive of the case of R. v. Conlin, since the accused 
 had been tried and convicted by the police magistrate of the city 
 of Hamilton, having first consented to be so tried, so that the 
 magistrate had complete jurisdiction in any event under the pro- 
 visions of sec. 777. And see R. v. Morgan, post. 
 
 The theft of a bundle of tied letters by one act is a single 
 offence, and, when the total value exceeds $10, a magistrate, having 
 jurisdiction only under sec. 773, has no jurisdiction to try the 
 thief summarily under that section on a charge of stealing one of 
 the letters containing exactly $10. R. v. Pope, 22 C. C. C. 327. 
 
 This brings us to a discussion of an important feature relating 
 to the jurisdiction of the magistrates under this part, which might 
 as well be disposed of here. 
 
 It is necessary to make it clear that all the magistrates who 
 have jurisdiction to try the offences mentioned in sec. 773 have 
 not the jurisdiction to try offences which may be tried by a Court 
 of General Sessions of the Peace, as provided by sec. 777. 
 
 Police and stipendiary magistrates in any county or district 
 or provisional county in Ontario, and police and stipendiary magis- 
 trates of cities and incorporated towns having a population of not 
 less than 2,500, in all the provinces, and the recorder of any such 
 city or town, if he exercises judicial functions, and the Judges 
 of the Territorial Courts and police magistrates in the Yukon
 
 MAGISTRATES HAVING RESTRICTED JURISDICTION. 385 
 
 Territory, and district magistrates and Judges of Sessions in 
 Quebec, have each and all of them power to try any indictable 
 offences for which an offender may be tried at a Court of General 
 Sessions, under the provisions of sec. 777. 
 
 The magistrate mentioned in sec. 773 is the magistrate meant 
 and included and defined in sec. 771. And, while in this class of 
 magistrates are included those mentioned in sec. 777, yet many 
 of those mention in 771 are excluded from the more extended 
 jurisdiction given by sec. 777. For instance, while a police or 
 stipendiary magistrate appointed for a county or district in Nova 
 Scotia, and whose jurisdiction does not extend to or include a 
 city or town of not less than 2,500 inhabitants in his county or 
 district, would have complete jurisdiction to hear and determine 
 the various offences enumerated in sec. 773, yet such a magistrate 
 is not vested wth the general authority given by sec. 777. 
 
 While any and all police magistrates in Manitoba, Saskatche- 
 wan, Alberta, and British Columbia have jurisdiction under sec. 
 773, the class of magistrates in these provinces who have juris- 
 diction under sec. 777 is limited to police magistrates of cities 
 and incorporated towns of not less than 2,500. 
 
 Or, to put it in another way, while a magistrate, having juris- 
 diction in an incorporated town in the above provinces of, say, 
 2,000 people, can exercise the power vested in him by sec. 773, this 
 same magistrate cannot exercise the general authority given to 
 magistrates under sec. 777, and his jurisdiction will be thus 
 limited, so long as the population of his town remains under 
 2,500. 
 
 Whenever any person is charged before a magistrate with any 
 of the offences enumerated in sec. 773, the magistrate may, sub- 
 ject to the subsequent provisions of this part, hear and determine 
 the charge in a summary way. 
 
 That is, a magistrate may hear and determine the charge ; he 
 is not compelled to do so. and, as we will notice presently* it is 
 entirely optional with the magistrate whether or not he exercises 
 the jurisdiction given him by this Part. 
 
 If he does undertake to hear and determine the charge, then 
 the magistrate must so hear it after having fully complied with 
 the subsequent provisions of this Part, that is, he must follow 
 strictly the procedure set out in sec. 778, and subsequent sections 
 relating to procedure. 
 
 C.C.P. 25
 
 386 JURISDICTION OF MAGISTRATES UNDER SEC. 773. 
 
 A magistrate having a prisoner before him upon a charge of 
 theft, may convict such prisoner of attempting to commit the theft. 
 R. v. Morgan, (1901) 5 C. C. C. 63. 
 
 The offence of theft from the person is sufficiently described 
 in the conviction in popular language as "picking the pocket of 
 a person/' Ibid. 
 
 In R. v. Crossen, (1899) 12 M. E. 571, and 3 C. C. C. 152, 
 the writ of certiorari applied for was granted on the ground that 
 the offence charged came within sec. 783 (e) (now 773 (e)) of 
 the Code and subsequent sections, and that the parties could not 
 have been tried summarily except by compliance with sec. 786 
 (now sec. 778) of the Code, notwithstanding the provisions of 
 sec. 144 (now sec. 169). 
 
 This decision is not understandable as reported. The report 
 must be imperfect. Perhaps what did occur was that the justices 
 inflicted punishment beyond their jurisdiction on summary con- 
 viction. As to the power of two justices trying a case like this 
 summarily! without having to comply with the procedure laid down 
 in sec. 778, there can be no possible doubt. Sec. 144 of the old 
 Code (now sec. 169), expressly enacts that every one guilty of 
 the offence is liable "on summary conviction before two justices 
 of the peace to six months' imprisonment, with hard labour, or to 
 a fine of one hundred dollars." Surely this enactment clearly 
 establishes that a person charged for an offence under sec. 144 
 (now 169) can be convicted by two justices on summary conviction. 
 
 If the justices in R. v. Crossen proceeded under the summary 
 conviction clauses (now Part XV.) and the punishment they 
 awarded did not exceed the limit prescribed by sec. 144 (now 169), 
 with all due deference, it is hard to comprehend the decision as 
 reported. 
 
 [The present editor is in a position to support the opinion of 
 the author here given, as he was counsel for the Crown at the 
 argument and can state that, for a reason not necessary to give, 
 the Crown was not especially anxious to sustain the conviction, 
 and sub-sec. 2 of sec. 784 (now 774) was not drawn to the atten- 
 tion of the Court.] 
 
 The question as to the offence of resisting or wilfully obstruct- 
 ing a peace officer in the execution of his duty being tried sum- 
 marily by two justices of the peace, or by a police magistrate, by 
 way of summary conviction under Part XV., has been the subject 
 of two decisions in the Courts of British Columbia, disapproving 
 of that in R. v. Crossen.
 
 RESISTING OR OBSTRUCTING A PEACE OFFICER. 38? 
 
 The first case ie that of R. v. Nelson, (1901) 4 C. C. C. 461, 
 in which case the accused was tried by the police magistrate of 
 Victoria by way of summary conviction. 
 
 MR. JUSTICE DRAKE, at p. 463, says, speaking of the decision 
 in R. v. Crossen, supra : " No reasons are given for this judgment, 
 and, although the Court giving this judgment is entitled to the 
 greatest respect, yet until I have some reasons given for the views 
 there adopted, I hesitate to follow it. To do so would be to ignore 
 the language of sec. 144 (now 169), to which, in my opinion, full 
 effect can be given." 
 
 In R. v. Jack (No. 2), (1902) 5 C. C. . 304, MR. JUSTICE 
 WALKEM held that " The summary conviction referred to in sec. 
 144 (now 169) means a summary conviction under Part LVIII. 
 (now XV.) of the Code, and such the present conviction is." It 
 was also held that that section, 144 (now 169), is not controlled 
 by sees. 783 and 784 (now sees. 773 and 774) . 
 
 The learned Judge also said: "It will thus be apparent that 
 the punishment mentioned in sec. 78S (now sec. 781) differs 
 materially from that mentioned in sec. 144 (now 169), although 
 the offence is the same. Section 783 (now sec. 773) also contains 
 the word 'assaulted,' which is absent in sec. 144 (now 169)." 
 
 In R. v. Koolberger, 16 C. C. C. 228, CROSS, J., inclined to agree 
 with the Crossen case, although he actually decided that the con- 
 viction was bad, because it adjudged the defendant guilty of wil- 
 ful]y obstructing a public officer, and the case was re-tried on the 
 defendant's appeal from the conviction with his consent. 
 
 The offence of " assaulting " a peace officer, under sec. 296 of 
 the Code, is an indictable offence and punishable by two years' 
 imprisonment, and can only be disposed of summarily by a magis- 
 trate acting under the powers vested in him by sec. 773 GT sec. 
 777. If, however, the magistrate has not the extended powers 
 conferred by sec. 777, the imprisonment awarded by him would be 
 limited to six months. Sec. 781 /"" 
 
 Of sec. 773, the part that has most frequently engaged the 
 attention of our Superior Courts by way of appeal, on certiorari 
 and habeas corpus proceedings, is paragraph (f) "keeping a dis- 
 orderly house under sec. 228." 
 
 In the original Code, and until the amendment of 1909 (8-9 
 Edw. VII, ch. 9), this section read "with keeping, or being an 
 inmate, or habitual frequenter of any disorderly house, house of 
 ill-fame or bawdy house." As the paragraph now stands, it ie 
 limited to " keeping a disorderly house under sec. 228."
 
 388 DISORDERLY HOUSE OFFENCES. 
 
 Inmates and habitual frequenters of houses of ill-fame are 
 dealt with by paragraphs (j) and (k) of sec. 238 of the Code 
 the section dealing with vagrancy. 
 
 A person convicted of keeping a disorderly house under sec. 
 228, or of an offence included in paragraph (a) of sec. 773, has a 
 right of appeal, as provided by sec. 797, post. 
 
 See the notes to sec. 238 in Crankshaw, 3rd ed. (1910), at 
 pp. 251-257. Also Tremeear, 2nd ed. (1908), pp. 170-178. 
 
 DISORDERLY HOUSE. 
 
 Section 228, as amended in 1909 (8-9 Edw. VII. ch. 9) and 
 in 1913 (ch. 13, sec. 10), is as follows: 
 
 228. Every one is guilty of an indictable offence and liable to one 
 year's imprisonment who keeps any disorderly house, that is to say, any 
 common bawdy-house, common gaming-house, common betting-house, or 
 opium joint, as hereinbefore defined. 
 
 2. Any one who appears, acts or behaves as master or mistress, or as 
 the person having the care, government or management, of any disorderly 
 house, or as assisting in such care, government or management, shall be 
 deemed to be the keeper thereof, and shall be liable to be prosecuted and 
 punished as such, although in fact he or she is not the real owner or keeper 
 thereof. 
 
 Here follows sec. 22.8 A enacted in 1913 for the punishment of 
 landlords and others having charge or control of disorderly houses: 
 
 228A. Any one who, as landlord, lessor, tenant, occupier, agent or 
 otherwise, has charge or control of any premises and knowingly permits 
 such premises or any part thereof to be let or used for the purposes of a 
 disorderly house, shall be liable upon summary conviction to a fine of two 
 hundred dollars and costs, or to imprisonment not exceeding two months, 
 or to both fine and imprisonment. 
 
 2. If the landlord, lessor or agent of premises in respect of which any 
 person has been convicted as the keeper of a common bawdy house fails, 
 after such conviction has been brought to his notice, to exercise any right 
 he may have to determine the tenancy or right of occupation of the person 
 so convicted, and subsequently any such offence is again committed on the 
 said premises, such landlord, lessor or agent shall be deemed to be a keeper 
 of a common bawdy house unless he proves that he has taken all reason- 
 able steps to prevent the recurrence of the offence. 
 
 Being found, without lawful excuse, in any disorderly house 
 is punishable under sec. 229. 
 
 229. Every one who, without lawful excuse, is found in any disorderly 
 house shall be liable on summary conviction to a penalty not exceeding one 
 hundred dollars and costs and in default of payment to two months' im- 
 prisonment. 
 
 A common bawdy house is defined by sec. 225 of the Code, a 
 common gaming house by sec. 226, a common betting house by
 
 SEARCHES IN DISORDERLY HOUSES. 389 
 
 sec. 227, and an opium joint by sec. 227A. See the notes in 
 Crankshaw and Tremeear to these several sections. 
 
 As to searching for women in houses of ill-fame, see sec. 640 
 of the Code. 
 
 Searching gaming houses, betting houses and lotteries, see sec. 
 641, as re-enacted in 1913. Search and seizure in opium joints, 
 see sec. 642A. Searching for vagrants in disorderly houses, see 
 sec. 643. 
 
 As to betting on the street, in front of the defendant's fixed 
 place of business, see R. v. Johnstone, 16 C. C. C. 379. 
 
 A newsdealer or newsboy selling newspapers containing in- 
 formation intended for use in betting or pool-selling, contrary to 
 Code sec. 235 (as amended in 1910), if himself without criminal 
 intent, would not be guilty under that section, although the printer 
 or publisher might be. R. v. Luttrell, 18 C. C. C. 295. 
 
 As to prima fade evidence in prosecutions under sec. 228 for 
 keeping a gaming house, or playing or looking on under sec. 229, 
 see the provisions of sees. 985 and 986 of the Code. 
 
 SEARCH FOE WOMEN IN HOUSES OP ILL-FAME. 
 
 640. Whenever there is reason to believe that any woman or girl, 
 mentioned in section two hundred and sixteen of this Act, has been inveigled 
 or enticed to a house of ill-fame or assignation, then upon complaint 
 thereof being made under oath by the parent, husband, master or guardian 
 of such woman or girl, or in the event of such woman or girl having no 
 known parent, husband, master or guardian in the place in which the 
 offence is alleged to have been committed, by any other person, to any 
 justice, or to a Judge of any Court authorized to issue warrants in cases 
 of alleged offences against the criminal law, such justice or Judge may issue 
 a warrant to enter, by day or night, such house of ill-fame or assignation, 
 and if necessary use force for the purpose of effecting such entry whether 
 by breaking open doors or otherwise, and to search for such woman or girl, 
 and bring her and the person or persons in whose keeping and possession 
 she is before such justice or Judge, who may, on examination, order her to 
 be delivered to her parent, husband, master or guardian, or to be discharged, 
 as law and justice require. 
 
 SEARCHING DISORDERLY HOUSES, &c. 
 Section 641 as re-enacted in 1913 (c. 13, s. 21). 
 
 641. If a constable or other peace officer of any city, town, incorpor- 
 ated village or other municipality or district, organized or unorganized, or 
 place, reports in writing to the mayor or chief magistrate or to the police, 
 stipendiary or district magistrate of such city, town, incorporated village 
 or other municipality, district or place, or to any police or stipendiary 
 magistrate having jurisdiction there, or, if there be no such mayor or chief 
 magistrate, or police, stipendiary or district magistrate, to any justice hav- 
 ing such jurisdiction, that there are good grounds for believing, and that 
 he does believe, that any house, room or place within the said city, or 
 town, incorporated village or other municipality, district or place is kept
 
 390 SEARCHES IN DISORDERLY HOUSES, ETC. 
 
 or used as a disorderly house as defined by section two hundred and twenty- 
 eight; or for betting, wagering or pool selling contrary to the provi- 
 sions of section two hundred and thirty-five, or for the purpose of carrying 
 on a lottery or for the sale of lottery tickets, or for the purpose of con- 
 ducting or carrying on any scheme, contrivance or operation for the pur- 
 pose of determining the winners in any lottery contrary to the provisions 
 of section two hundred and thirty-six, whether admission thereto is limited 
 to those possessed of entrance keys or otherwise ; such mayor, chief mag- 
 istrate, police, stipendiary or district magistrate or justice, may, by order 
 in writing, authorize the constable or other peace officer to enter and 
 search any such house, room or place with such other constables or peace 
 officers as are deemed requisite by him, and such peace officer or peace of- 
 ficers may thereupon enter and search all parts of such house, room or 
 place and if necessary may use force for the purpose of effecting such 
 entry, whether by breaking open doors, or otherwise, and may take into 
 custody all persons who are found therein and may seize all tables and 
 instruments of gaming, wagering or betting and all moneys and securities 
 for money and all instruments or devices for the carrying on of a lottery, 
 or of any scheme, contrivance or operation for determining the winners in 
 any lottery, and all lottery tickets and all intoxicating liquors and all 
 opium and devices, pipes or apparatus for preparing or for smoking or 
 inhaling opium and all circulars, advertisements, printed matter, stationery 
 and things which may be found in such house or premises which appear 
 to have been used or to be intended for use for any illegal purpose or 
 business, and shall bring the same before the person issuing such order or 
 any justice, to be by him dealt with according to law. 
 
 2. The person issuing such order, or the justice before whom any per- 
 son is taken by virtue of an order under this section, may direct that any 
 money or securities for money so seized shall be forfeited to the Crown 
 for the public uses of Canada, and that any other thing seized shall be 
 destroyed or otherwise disposed of ; provided that nothing shall be destroyed 
 or disposed of pending any appeal or any proceeding in which the right 
 of seizure is questioned or before the time within which such appeal or 
 other proceeding may be taken has expired. 
 
 As to the powers of a deputy high constable proceeding under 
 sec. 641, see O'Neill v. Attorney-General of Canada, (1896) 1 C. 
 C. C. 303, 26 S. 0. E. 122. 
 
 POWER OF MAGISTRATE AS TO EXAMINATION or PERSONS APPRE- 
 HENDED UNDER SECTION 641. 
 
 642. The person issuing such order or the justice before whom any 
 person who has been found in any house, room or place, entered in pur- 
 suance of any order under the last preceding section, is taken by virtue of 
 such order, may require any such person to be examined on oath and to 
 give evidence touching any unlawful gaming in such house, room or place, 
 or touching any act done for the purpose of preventing, obstructing or 
 delaying the entry into such house, room or place, or any part thereof, of 
 any constable or officer authorized to make such entry ; and any such per- 
 son so required to be examined as a witness who refuses to make oath 
 accordingly, or to answer any question, shall be subject to be dealt with 
 in all respects as any person appearing as a witness before any justice or 
 Court in obedience to a summons or subpoena, and refusing without lawful 
 cause or excuse to be sworn or to give evidence, may, by law, be dealt with. 
 
 2. Every person so required to be examined as a witness, who, upon 
 such examination, makes true disclosure, to the best of his knowledge, of 
 all things as to which he is examined, shall receive from the Judge, justice, 
 magistrate, examiner or other judicial officer before whom such proceeding 
 is had, a certificate in writing to that effect, and shall be freed from all 
 criminal prosecutions and penal actions, and from all penalties, forfeitures 
 and punishments to which he has become liable for anything done before
 
 OTHER SEARCHES PRIMA FACIE EVIDENCE OF GAMING. 391 
 
 that time in respect of any act of gaming regarding which he has been so 
 examined, if such certificate states that such witness made a 
 true disclosure in respect to all things as to which he was examined ; 
 and any action, indictment or proceeding pending or brought in 
 any Court against such witness in respect of any act of gaming regard- 
 ing which he was so examined, shall be stayed, upon the production and 
 proof of such certificate, and upon summary application to the Court in 
 which such action, indictment or proceeding is pending, or any Judge 
 thereof, or any Judge of any of the superior Courts of any province. 
 
 SEARCH AND SEIZURE IN OPIUM JOINTS. 
 
 " 642A. The provisions of sections 641 and 642 shall apply to searches 
 in opium joints and to the seizure of devices, pipes or apparatus for pre- 
 paring for smoking or inhaling, or for smoking or inhaling opium, and all 
 couches, beds and chairs in such joints, and to the proceedings thereupon." 
 
 SEARCH FOR VAGRANTS IN DISORDERLY HOUSES. 
 
 643. Any stipendiary or police magistrate, mayor or warden, or 
 any two justices, upon information before them made, that any person 
 described in Part V. as a loose, idle or disorderly person, or vagrant, is or 
 is reasonably suspected to be harboured or concealed in any disorderly 
 house, bawdy-house, house of ill-fame, tavern or boarding-house, may, by 
 warrant, authorize any constable or other person to enter at any time such 
 house or tavern, and to apprehend and bring before them or any other 
 justices, every person found therein so suspected as aforesaid. 
 
 PRIMA FACIE EVIDENCE OF GAMING HOUSES. 
 
 985. When any cards, dice, balls, counters, tables or other instru- 
 ments of gaming used in playing any unlawful game are found in any 
 house, room or place suspected to be used as~a common gaming house, 
 and entered under a warrant or order issued under this Act, or about the 
 person of any of those who are found therein, it shall be prima facie 
 evidence, on the trial of a prosecution under section two hundred and 
 twenty-eight or section two hundred and twenty-nine, that such house, room 
 or place is used as a common gaming house, and that the persons found 
 in the room or place where such instruments of gaming are found were 
 playing therein, although no play was actually going on in the presence of 
 the officer entering the same under such warrant or order, or in the presence 
 of the persons by whom he is accompanied. 
 
 If the evidence here referred to was obtained on a search war- 
 rant, it will be admissible, irrespective of a claim by the accused 
 that the search warrant was illegal. R. v. Honan, 20 C. C. C. 10. 
 But see R. v. Hung Gee, 21 C. C. C. 404, and R. v. Jung Lee, 22 
 C. C. C. 63, as to circumstances which will prevent the statutory 
 presumption from arising. 
 
 986. In any prosecution under section two hundred and twenty-eight 
 or under section two hundred and twenty-nine, it shall be prima facie 
 evidence that a house, room or place is a disorderly house if any constable 
 or officer authorized to enter any house, room or place is wilfully pre- 
 vented from or obstructed or delayed in entering the same, or any part 
 thereof; and if any house, room or place is found fitted or provided with 
 any means or contrivance for unlawful gaming or betting or for opium 
 smoking or inhaling or with any device for concealing, removing or destroy- 
 ing such means or contrivance, it shall be prima facie evidence that such
 
 392 CHARGES AGAINST CORPORATIONS. 
 
 house, room or place is a common gaming house, common betting house or 
 opium joint, as the means of contrivance may indicate. 
 
 Offences under sec. 235, mentioned in paragraph (g) of sec- 
 773, are in relation to betting and pool selling. Section 235 was re- 
 pealed and a new section substituted in the amendments made to 
 the Code in 1910; these are important and should be referred to. 
 
 The provisions of sec. 985 do not relieve the prosecutor from 
 the onus of proof required to establish that the place was kept 
 for gain and that persons resorted to the house for the purpose 
 of playing. E. v. See Wo, (1910) 16 C. C. C. 213. 
 
 Fan tan is not per se an unlawful game. Ibid, and R. v. Hung 
 Gee, 21 C. C. C. 404. See also R. v. Jung Lee, supra. 
 
 CHAEGES AGAINST COBPOBATIONS. 
 
 " 773a. When the person to be so charged is a corporation, the sum- 
 mons may be served on the mayor or chief officer of such corporation, or 
 upon the clerk or secretary or the like officer thereof, and may be in the 
 same form as if the defendant were a natural person. 
 
 " 2. The corporation in such case shall appear by attorney, who may 
 on its behalf elect, and confess or deny the charge, and thereupon the case 
 shall proceed as if the defendant were a natural person. 
 
 " 3. If the corporation does not appear and confess or deny the charge, 
 the magistrate may proceed in the absence of the defendant, as upon a 
 preliminary investigation." 
 
 This amendment was made in 1909. Presumably it includes 
 all corporations, municipal and otherwise, although it does not 
 say so. A " corporation " is not defined in either the Interpreta- 
 tion Act, R. S. C. ch. 1, or in sec. 2 of the Code. There is no doubt 
 it includes a municipal corporation since it speaks of the " mayor " 
 of such corporation. All doubt would have been spared if the 
 words " municipal or otherwise " had followed the word " corpora- 
 tion" in the first line. Evidently the use of the words "chief 
 officer " and " secretary " have been thought sufficient to identify 
 corporations other than municipal, and pending amplification by 
 future amendment we will in the meantime read the section as 
 including all corporations, since that may be accepted as a reason- 
 able intendment. 
 
 ABSOLUTE JURISDICTION OF MAGISTRATE. 
 
 Disorderly House. 
 
 " 774. The jurisdiction of the magistrate is absolute in the case of any 
 person ^ charged with keeping a disorderly house, or with being an inmate 
 or habitual frequenter of a common bawdy-house, and does not depend on
 
 WHEN MAGISTRATE'S JURISDICTION ABSOLUTE. 393 
 
 the consent of the person charged to be tried by such magistrate, nor shall 
 such person be asked if he consents to be so tried. 
 
 " 2. The provisions of this Part do not affect any absolute summary 
 jurisdiction given to justice's by any other Part of this Act." 
 
 The disorderly houses referred to are those mentioned in sec. 
 228, and include common bawdy, common gaming and common 
 betting houses, or opium joints, as already referred to. 
 
 This section gives all magistrates as defined by sec. 771, juris- 
 diction to try the offence of keeping a disorderly house without the 
 consent of the person charged. Keeping a disorderly house is by 
 sec. 228 made an indictable offence punishable with one year's 
 imprisonment and any such magistrate may try such a charge sum- 
 marily without the consent of the accused. R. v. Honan, 20 C. C. 
 C. 10 ; R. v. Jung Lee, 22 C. C. C. 63. See also R. v. Early (No. 
 3), 14 C. C. C. 10. 
 
 The punishment, however, is governed by section 781, and 
 even a city magistrate, having the more extensive jurisdiction con- 
 ferred by section 777, cannot sentence the offender to imprison- 
 ment for more than six months, unless, perhaps, he has obtained 
 the consent of the accused to be tried summarily. R. v. 8hing f 20 
 M. R. 214, 17 C. C. C. 463. As to this last qualification, there 
 would seem to be little basis for it since section 774 expressly says, 
 " nor shall such person be asked if he consents to be so tried/' 
 
 It seems to the writer a reasonable proposition that the maxi- 
 mum of punishment to which a person found guilty of any given 
 offence is liable should be the same whether he is tried by one 
 magistrate or by another, and, if this is correct, no city magistrate, 
 trying any case included in sec. 773, with or without the consent 
 of the accused, has power to impose any greater sentence than a 
 police magistrate in the country could, subject, however, to the 
 special jurisdiction given to police magistrates in cities of 25,000 
 population by sub-sec. 5 of sec. 777, post. This principle is sup- 
 ported by K. y. Shing, supra, and R. v. Randolph, 4 C. C. C. 165, 
 but would" not of course apply so as to prevent a heavier sentence 
 being imposed upon conviction for an indictable offence, such as 
 common assault, actually tried upon an indictment, than could be 
 imposed if the offence were treated as a summary conviction mat- 
 ter, as it might be in a case of some offences at the option of the 
 prosecution. See R. v. Sarah Smith, post. 
 
 It is not easy to see why the offence of " being an inmate or 
 habitual frequenter of a common bawdy house " is still retained in 
 this section, because it is nowhere in the Code made an indictable
 
 394 PUNISHMENT IN SUMMARY TRIALS. 
 
 offence, and is indeed only made punishable as one of the various 
 things constituting vagrancy under sec. 238, which is punishable 
 on summary conviction by sec. 239. Section 774, therefore, may 
 be read as if the words above quoted had been omitted. 
 
 If a person is charged under sec. 773 (f) with keeping a dis- 
 orderly house under sec. 228 and tried before a magistrate, the 
 punishment prescribed by sec. 781 is imprisonment with or with- 
 out hard labour for any term not exceeding six months, or a fine 
 not exceeding, with costs in the case, $200, or to both fine and im- 
 prisonment not exceeding the said sum and term. 
 
 The "disorderly house" mentioned in paragraph (j) of sec. 
 238 was, prior to the amendment of the Code in 1909, held to be 
 ejusdem generis with a bawdy house, or house of ill-fame, and 
 did not refer to a common gaming house, or betting house or 
 opium joint referred to in sec. 228]. See R. v. France and R. v. 
 Lee Guey, post; but, since that amendment, such places would be 
 disorderly houses under sees. 773 and 774. 
 
 Upon an examination of the information a magistrate can 
 readily ascertain as to whether the charge of keeping a disorderly 
 house, to wit: a bawdy house, is laid under sec. 238 or 228. If 
 under the former, the charge should always conclude with the 
 words "being thereby a loose, idle and disorderly person and a 
 vagrant." 
 
 As it is only under sec. 238 that inmates and frequenters of 
 bawdy houses can be dealt with, the charge in these informations, 
 like all other charges under sec. 238, should conclude with these 
 words. As to habitual frequenters, see R. v. Lamotlie, (1908) 15 
 C. C. C. 62. 
 
 A man cannot be convicted under sees. 225, 228, and 238 of 
 being an inmate of a bawdy house, since those sections apply only 
 to female inmates. R. v. Knowles, 21 C. C. C. 321. 
 
 The change made in paragraph (j) of sec. 773 by the amend- 
 ment of 1909 was, no doubt, occasioned by the judgment of the 
 Court of Appeal for Ontario in R. v. Lee Guey, (1907) 13 C. C. 
 C. 80, which followed the reasoning of the majority decision of the 
 Court of Appeal in Quebec in R. v. France, (1898) 1 C. C. C. 321. 
 
 In R. v. Lee Guey the Court held that the meaning of the 
 words "disorderly house," as used in sec. 238 (j), as well as in 
 sec. 773, is governed by the rule " noscitur a sociis/' and is there- 
 fore restricted to houses of the same class as houses of ill-fame or 
 bawdy houses. This is the meaning given to the words " disor- 
 derly house" in sec. 238 (j), the vagrancy clause.
 
 CASES AS TO DISORDERLY HOUSES. 395 
 
 As to a summary conviction for keeping a disorderly house, 
 without charging vagrancy, see E. v. Demetrio, 20 C. C. C. 316. 
 
 In Ex parts John CooTc, (1895) 3 C. C. C. 72, approved in R. 
 v. Ah Sam, 12 O. C. C. 538, MR. JUSTICE DRAKE of the Supreme 
 Court of B. C. held that a police magistrate had jurisdiction to 
 deal with gaming houses as falling within the category of disor- 
 derly houses as defined by sec. 198 (now 228). 
 
 The learned Judge also held that the jurisdiction of the magis- 
 trate was optional, the language used being^ that he may determine 
 the charge in a summary way. He says: "If he concludes"lo 
 exercise the jurisdiction".' the person charged cannot object, and 
 the 'Act further provides that if, after having commenced the in- 
 vestigation under Part LY. (now XV.) he may even then sec. 
 791 (now sec. 784) at the close of the evidence for the prosecu- 
 tion send up the case for trial. Therefore the magistrate cannot 
 be compelled by mandamus to hear and determine the present 
 charge. Where a discretion is vested in a subordinate officer or 
 tribunal, the Court cannot compel a particular course to be 
 adopted; the exercise of the discretion by the officer or tribunal is 
 a complete justification." 
 
 The above decision, so far as it holds that " a gaming house 
 cor^s within the meaning of a ' disorderly house ' in sec. 783 (now 
 773)," is in direct conflict with R. v. France and R. v. Lee Guey, 
 supra. 
 
 In R. v. Flynn, (1905) 9 C. C. C. 550, MR. JUSTICE CRAIG of 
 the Yukon Court disapproved of R. v. France and concurred in the 
 dissenting judgment of BOSSE, J. 
 
 It is now all settled by the amendment of 1909, and jurisdiction 
 is clearly given to magistrates to hear and determine all charges 
 which may be brought for keeping any kind of disorderly house 
 under sec. 228. 
 
 In R. v. Sarah Smith, (1905) 9 C. C. C. 338, KUSSELL, J., re- 
 served the following point for the consideration of the Supreme 
 Court of Nova Scotia : 
 
 " Does either sec. 207 (j) (now sec. 238) or 783 (f) (now 773) 
 of the criminal Code repeal sec. 198 (now 228) of the Code? If 
 so, the defendant will be entitled to have the conviction against 
 her quashed." 
 
 The prisoner was indicted under sees. 195 (now 225) and 198 
 (now 228) with keeping a disorderly house, to wit, a common 
 bawdy house in the City of Halifax. The prisoner was convicted, 
 but not sentenced, pending tbe decision of the full Court.
 
 396 HABEAS CORPUS AND CEETIORABI WILL LIE. 
 
 The Court held that sec. 783 (f ) (now 773) is pure procedure 
 and enables the offence to be disposed of by a summary trial when 
 the defendant is brought before a magistrate charged with the 
 offence. ..." The object of Parliament was plain, viz., to 
 enable the prosecutor to proceed either by indictment, or by sum- 
 mary conviction, and the punishment is adapted to the tribunal 
 which in either case is called on to deal with the offender. It has 
 dealt with the subject of assault in the same way, and there are 
 alternative penalties and tribunals." The conviction was affirmed. 
 
 The amendment to sec. 773 (f ) in 1909 disposes of the deci- 
 sion of WEATHEBBE, J., in R. v. Keeping, (1901) 4 C. C. C. 494, 
 which, so far as relates to the question of jurisdiction, is hard to 
 understand. 
 
 A conviction made by a magistrate in respect to a charge under 
 Part XVI. of the Code of an indictable offence which the magis- 
 trate has absolute jurisdiction to try without the consent of the 
 accused, is subject to be inquired into upon hahea-s corpus and 
 certiorari proceedings. And this, notwithstanding the provisions 
 of sec. 798 (now 791), which declares that "Every conviction 
 under this Part shall have the same effect as a conviction upon 
 indictment for the same offence." R. v. St. Clair, (1900) 3 C. C. 
 C. 551. 
 
 A conviction upon a charge of keeping, or being an inmate of, a 
 bawdy house should not be made upon evidence of general reputa- 
 tion only. The prosecution should be required to produce proof 
 of acts, or conduct, from which the character of the house may be 
 inferred. The conduct of the women when arrested and what they 
 said may properly be proved in support of the charge. Hid. 
 
 On a charge of being an inmate of a bawdy house, the evidence 
 given by the witnesses on the hearing of the charge against the 
 keeper may, with the consent of the accused, or her counsel, be 
 read as evidence in the case. Ibid. 
 
 See also R. v. Marcinko, 19 C. C. C. 388, and R. v. Jackson, 
 22 C. C. C. 215, also R. v. Johnson, 23 C. C. C. 136, as to what 
 evidence may be sufficient to warrant a finding of guilt} 7 in such a 
 case. 
 
 Where a person was convicted before a magistrate of being an 
 inmate of a bawdy house and was fined $90 and $6.25 costs, or in 
 default six months' imprisonment, the conviction omitted the words 
 " being charged before me." On a motion to quash the conviction, 
 it was held that it was made under Part LV. (now XVI.) as upon 
 a summary trial, and the motion was dismissed. R. v. Ames,
 
 OTHER CASES WHERE JURISDICTION ABSOLUTE. 397 
 
 (1903) 10 C. C. C. 52. By the amendment of 1909, supra, the 
 fine is now limited to $50, under sec. 238, for the offence of being 
 an inmate, &c. 
 
 Sub-section (2) of sec. 774 provides that the provisions of this 
 Part do not affect any absolute summary jurisdiction given to 
 justices by any other part of this Act. 
 
 This means that the fact of a magistrate having jurisdiction 
 to try the offences enumerated in the Part does not interfere with 
 his trying the same offences by way of summary conviction under 
 Part XV. if such offences can be so tried. 
 
 For instance, he has absolute jurisdiction under Part XV. to 
 try the offences enumerated in sec. 238, vagrancy, or a common 
 assault, sec. 291, and this jurisdiction is not interfered with by 
 reason of his having jurisdiction to try the offences enumerated in 
 those sections of the Code under the powers given him in this Part. 
 
 SEAFARING PERSONS. 
 
 775. The jurisdiction of the magistrate is absolute in the case of 
 any person who, being a seafaring person and only transiently in Canada, 
 and having no permanent domicile therein, is charged, either within the city 
 of Quebec as limited for the purpose of the police ordinance, or within the 
 city of Montreal as so limited, or in any other seaport city or town in 
 Canada where there is such magistrate, with the commission therein of any 
 of the offences in this Part previously mentioned, and also in the case of 
 any other person charged with any such offence on the complaint of any 
 such seafaring person whose testimony is essential to the proof of the 
 offence. 
 
 2. Such jurisdiction does not depend on the consent of any such 
 person to be tried by the magistrate, nor shall such person be asked whether 
 he consents to be so tried. 
 
 ABSOLUTE JURISDICTION IN CERTAIN PROVINCES. 
 
 776. The jurisdiction of the magistrate in the provinces of British 
 Columbia, Prince Edward Island, Saskatchewan and Alberta, and in the 
 Northwest Territories and Yukon Territory, under this Part, is absolute 
 without the consent of the party charged, except in cases coming within 
 the provisions of section seven hundred and seventy-seven, and except 
 in cases under sections seven hundred and eighty-two and seven hundred 
 and eighty-three, where the person charged is not a person who under 
 section seven hundred and s,eventy-five, can be tried summarily without his 
 consent. , 
 
 The exceptions to the absolute jurisdiction given by this section 
 are as follows: 
 
 Section 777. The cases which come within the provisions of 
 sec. 777 are all offences for which a person may be tried at a 
 Court of General Sessions of the Peace.
 
 398 OTHER CASES WHERE JURISDICTION ABSOLUTE. 
 
 The only offences that cannot be tried at a Court of General 
 Sessions of the Peace are those enumerated in sec. 583 of the 
 Code, which see, post. 
 
 Cases coming under sees. 782 and 783 are theft, false pre- 
 tences, receiving stolen property, where the value of the property 
 stolen, obtained or received exceeds ten dollars. 
 
 Section 783 provides as to consent and trial of offences referred 
 to in section 782. And the exceptions under these sections, 782, 
 and 783, only apply where the person charged is not a person who, 
 under sec. 775, can be tried summarily without his consent, viz., 
 a seafaring person or a person charged by him. 
 
 The provisions of this section, therefore, mean that the juris- 
 diction of magistrates in the provinces mentioned is absolute with- 
 out the consent of the party charged, to hear and determine any 
 charges for the offences enumerated in sec. 773. In all the other 
 provinces the magistrates have jurisdiction, " subject to the pro- 
 visions of this part," i.e., they must first have the consent of the 
 party charged to try the offences enumerated in sec. 773, save as 
 provided by sec. 774, relating to disorderly houses. Why this 
 extended jurisdiction is given to magistrates in these several pro- 
 vinces, to the exclusion of the same class of magistrates in other 
 provinces, one is at a loss to understand. There are unorganized 
 territories in all the other provinces as well as in the provinces 
 mentioned, so that cannot be the reason. 
 
 Where two men were convicted by two justices of the peace in 
 British Columbia for stealing a coat of the value of less than ten 
 dollars, it was held that the defendants had a right of appeal from 
 the conviction, notwithstanding the fact that under sec. 784 (3) 
 (now sec. 776) the jurisdiction of the justices was absolute in 
 B. C. in cases of this kind. R. v. Wirth, 1 C. C. C. 231. And see 
 R. v. Jack, '(No. ), (1902) 5 C. . C. 304. 
 
 MAGISTRATES GIVEN JURISDICTION or GENERAL SESSIONS OF THE 
 
 PEACE. 
 
 777. " If any person is charged in the province of Ontario before a 
 police magistrate or before a stipendiary magistrate in any county, district 
 or provisional county in such province, with having committed any offence 
 for which he may be tried at a Court of General Sessions of the Peace, or 
 if any person is committed to a gaol in the county, district or provisional 
 county, under the warrant of any justice, for trial on a charge of being 
 guilty of any such offence, such person may, with his own consent, be tried 
 before such magistrate, and may, if found guilty, be sentenced by the 
 magistrate to the same punishment as he would have been liable to if he 
 had been tried before the Court of General Sessions of the Peace. 
 
 " 2. This section shall apply also to district magistrates and Judges 
 of the sessions in the province of Quebec, and to police and stipendiary
 
 CEETAIN MAGISTRATES HAVE EXTENDED JURISDICTION. 399 
 
 magistrates of cities and incorporated towns having a population of not 
 less than 2,500 according to the last decennial or other census taken under 
 the authority of an Act of the Parliament of Canada, and to the recorder 
 of any such city or town if he exercises judicial functions, and to Judges 
 of the Territorial Court and police magistrates in the Yukon Territory. 
 
 " 3. Sections seven hundred and eighty and seven hundred and eighty- 
 one do not extend or apply to cases tried under this section. 
 
 " 4. Where an offence charged is punishable with imprisonment for a 
 period exceeding five years, the Attorney-General may require that the 
 charge be tried by a jury, and may so require notwithstanding that the 
 person charged has consented to be tried by a_ magistrate under this section, 
 and thereupon the magistrate shall have no jurisdiction to try or sentence 
 such person under this section. 
 
 " 5. The jurisdiction of the magistrate under this section in cities 
 having a population of not less than 25,000 according to the last decennial 
 or other census taken under the authority of an Act of the Parliament of 
 Canada, is absolute, and does not depend upon the consent of the accused, 
 in the case of any person charged with theft, or with obtaining property 
 by false pretences, or with unlawfully receiving stolen property where 
 the value of the property alleged to have been stolen, obtained or received 
 does not, in the judgment of the magistrate, exceed ten dollars." 
 
 The above is sec. 777 as the same was amended and added to in 
 1909. 8-9 Edw. VII, c. 9, s. 2. 
 
 In Ontario police and stipendiary magistrates in any county, 
 district or provisional county are given jurisdiction under this 
 section. 
 
 In Quebec district magistrates and Judges of sessions, in addi- 
 tion to police and stipendiary magistrates of cities and incorpor- 
 ated towns having a population of not less than 2,500, and the re- 
 corder of any such city or town, have jurisdiction under this sec- 
 tion. 
 
 In all the other provinces the jurisdiction is limited to police 
 and stipendiary magistrates of cities and incorporated towns hav- 
 ing a population of not less than 2,500, and the recorder of any 
 such city or town if he exercises judicial functions. 
 
 The Judges of the Territorial Courts and police magistrates in 
 the Yukon Territory have likewise jurisdiction under this section. 
 
 The reason a more numerous class of magistrates in Ontario 
 are clothed with this extended jurisdiction than in the other pro- 
 vinces is that the class of magistrates mentioned had enjoyed this 
 jurisdiction in Ontario long prior to the passing of the Criminal 
 Code. 
 
 The first sub-section of sec. 777 is practically sec. 785 of the 
 original Code of 1892, and this section, 785, was a re-enactment of 
 sec. 7 of ch. 176 of the Revised Statutes of Canada (1887). 
 
 Section 785 of the original Code was amended in 1900 by 
 enacting sub-sec. 2 of the revised Code, viz., applying this section 
 "to police and stipendiary magistrates of cities and incorporated
 
 400 APPLICATION OF SECTIONS 780 AND 781, 
 
 towns in every other part of Canada and to recorders where they 
 exercise judicial functions." 
 
 This was wise and beneficial legislation and much to be com- 
 mended. As amended in 1909 the provision is narrowed by limit- 
 ing the class of magistrates to those " in cities and incorporated 
 towns having a population of not less than 2,500." Magistrates 
 in cities and towns of a less population, and who come within sec. 
 771, nevertheless can exercise their functions on the hearing and 
 determination of the offences mentioned and set out in sec. 773. 
 
 The expression " cities and incorporated towns, etc.," in sub- 
 section 2 of sec. 777 above, refer to such cities and towns 
 throughout Canada, and not merely in the Province of Quebec. 
 R. v. Rahamat Al\, 16 C. C. C. 193, and R. v. Spates, 22 C. C. C. 
 269. 
 
 It is hopefully suggested that if this section, 777, is again 
 amended, it will be re-cast and simplified, and be constructed to 
 meet the present conditions of the Dominion. There is surely no 
 reason for any reference to the jurisdiction of " the Court of 
 General Sessions of the Peace." This Court does not exist in any 
 of the provinces outside of Ontario and Quebec. Why not state 
 specifically that certain magistrates, enumerating them, shall, with 
 the consent of the accused, or person charged, have jurisdiction to 
 hear and determine all offences save and except those mentioned 
 and set out in sec. 583? 
 
 Sub-section 3 of sec. 777 provides that sees. 780 and 781 do not 
 extend or apply to cases tried under this section. Section 780 pre- 
 scribes the punishment on conviction for offences under para- 
 graphs (a) and (b) of sec. 773. And sec. 781 prescribes the pun- 
 ishment on conviction for offences summarily tried under para- 
 graphs (c), (d), (e), (f) and (g) of sec. 773. 
 
 The meaning, therefore, of sub-sec. 3 of sec. 777 is. that a 
 magistrate hearing and determining a case only under the provi- 
 sions and jurisdiction conferred by sec. 777, upon conviction, is 
 not restricted to the punishment fixed oy sees. 780 and 781, but 
 may award the same and like penalties as if the person convicted 
 had been found guilty upon an indictment, unless, as before pointed 
 out, the charge is one coming under some one of the paragraphs 
 of sec. 773. See R. v. Archibald, (1898) 4 (J. (J. C. 159. Ancl 
 see the well considered and comprehensive judgment of GRAHAM, 
 EJ., in R. v. McLeod, (lUOfl) 12 (J. I*. (J. 78. 
 
 Attention is directed to the expression " police magistrates of 
 cities and incorporated towns." It is not enough that a police
 
 JURISDICTION IN CITIES OF 25,000. 401 
 
 magistrate's appointment should be of or for the whole of a Pro- 
 vince, but he should be specially appointed to be police magis- 
 trate of the city or town, naming it, in order that he may have 
 the extensive jurisdiction conferred by this section, though he 
 may also have jurisdiction over the whole Province conferred upon 
 him. See E. v. Nar Singh, 45 C. L. J. 296, and R. v. Eenner, 8 
 C. C. C. 398, and R. v. Alexander, 21 G. C. C. 473. 
 
 ATTORNEY- GENERAL MAY INTERVENE. 
 
 The provisions of sub-sees. 4 and 5 are new, being added in 
 1909. 
 
 By the provisions of sub-sec. 4, where an offence charged is 
 punishable with imprisonment exceeding five years, the Attorney- 
 General may require that the charge be tried by a jury, notwith- 
 standing that the person charged has consented to be tried by the 
 magistrate under sec. 777. 
 
 When, therefore, the Attorney-General signifies his wishes the 
 jurisdiction of the magistrate is ousted, and he can only proceed 
 as upon a preliminary inquiry. 
 
 ABSOLUTE JURISDICTION IN CITIES OF 25,000. 
 
 By sub-sec. 5 the jurisdiction exercised under sec. 777 in cities 
 of not less than 25,000 population is absolute and does not depend 
 upon the consent of the accused in charges of theft, or obtaining 
 property by false pretences, or receiving stolen property, where the 
 value of the property alleged to have been stolen, obtained or re- 
 ceived does not, in the judgment of the magistrate, exceed ten 
 dollars. 
 
 This sub-section obviates the necessity of putting the accused 
 to his election, and is a saving of both time and expense in dealing 
 with trifling offences. The only comment one wishes to make is, 
 that the value should have been raised far above ten dollars. 
 
 In R. v. Conlin, 1 C. C. C. 41, KOBERTSON, J., expressly held 
 that theft from the person under sec. 379 does not come under 
 paragraph (a) or (b) of sec. 783 (now 773), but comes under 
 SBC, 777, being a much more serious offence, though BOYD, C., ex- 
 pressed a contrary opinion. It is submitted that the opinion of 
 BoBEiiTSON,, J., is correct, and .that no magistrate could try such a 
 chswge without the consent of -the accused, no matter how small 
 the amount stolen. See~ZL .v. Bonvn, 20 C. C. C. 180. 
 
 C.C.P. 20
 
 402 JURISDICTION OF GENERAL OR QUARTER SESSIONS. 
 
 A person charged with theft may be convicted of an attempt 
 to commit the theft. See R. v. Morgan, (1901) 5 C. C. C. 63. 
 
 JURISDICTION OF GENERAL AND QUARTER SESSIONS. 
 
 In order that the magistrates mentioned in sec. 777 may pro- 
 perly know what class of crimes are exempted from their jurisdic- 
 tion, attention is called to the provisions of sees. 582 and 583 of 
 the Code. From a perusal of these sections it will be seen that 
 these magistrates have the like power with Courts of General or 
 Quarter Sessions of the Peace to try any indictable offences except 
 those mentioned and set out in sec. 583. 
 
 These sections are as follows: 
 
 582. Every Court of general or quarter sessions of the peace when 
 presided over by a superior Court Judge, or a county, or district Court 
 Judge, or in the cities of Montreal and Quebec by a recorder or Judge of 
 the sessions of the peace, and in the province of New Brunswick every 
 County Court Judge, has power to try any indictable offence except as here- 
 inafter provided. 
 
 583. No Court mentioned in the last preceding section has power to 
 try any offence under sections, 
 
 (o) seventy-four, treason; seventy-six, accessories after the fact to 
 treason ; seventy-seven, seventy-eight, and seventy-nine, treasonable 
 offences ; eighty, assaults on the King ; eighty-one, inciting to mutiny ; 
 eighty-five, unlawfully obtaining and communicating official informa- 
 tion ; eighty-six, communicating information acquired in office ; or, 
 
 (ft) one hundred and twenty-nine, administering, taking or procuring 
 the taking of oaths to commit certain crimes; one hundred and 
 thirty, administering, taking or procuring the taking of other un- 
 lawful oaths ; one hundred and thirty-four, seditious offences ; one 
 hundred and thirty-five, libels on foreign sovereigns ; one hundred 
 and thirty-six, spreading false news ; or, 
 
 (c) one hundred and thirty-seven to one hundred and forty inclusive, 
 piracy ; or, 
 
 (d) one hundred and fifty-*ix, judicial, etc., corruption ; one hundred 
 and fifty-seven, corruption of officers employed in prosecuting 
 offenders ; one hundred and fifty-eight, frauds upon the Government ; 
 one hundred and sixty, breach of trust by a public officer ; one 
 hundred and sixty-one, municipal corruption ; one hundred and sixty- 
 two (a), selling offices; or, 
 
 (e) two hundred and sixty-three, murder; two hundred and sixty- 
 four, attempt to murder ; two hundred and sixty-five, threat to 
 murder ; two hundred and sixty-six, conspiracy to murder ; two 
 hundred and sixty-seven, accessory after the fact to murder ; two 
 hundred and sixty-eight, manslaughter ; or. 
 
 (/) two hundred and ninety-nine, rape ; three hundred, attempt to 
 
 commit rape ; or, 
 (g) three hundred and seventeen to three hundred and thirty-four. 
 
 defamatory libel ; or, 
 (A) four hundred and ninety-eight, combination in restraint of trade: 
 
 or, 
 (t) conspiring or attempting to commit, or being accessory after the 
 
 fact to, any of the offences in this section before mentioned ; or. 
 (/) any indictment for bribery or undue influence, personation or 
 
 other corrupt practice under the Dominion Elections Act.
 
 JURISDICTION OF MAGISTRATES UNDER SECTION 777. 403 
 
 In Re Vancino (No. 2], (1904) 8 C. C. C. 228, 34 S. C. K. 621, 
 it was held by the Supreme Court of Canada that although there 
 are no " Courts of General Sessions " except in Ontario, the 1900 
 amendment of the Code, sec. 785 (now 777), extending its pro- 
 visions to cities and towns of other provinces is not therefore in- 
 operative, but gives to a magistrate in any other province the jur- 
 isdiction given for Ontario by sec. 785 (now 777). 
 
 " Where once the Parliament of Canada has given jurisdiction 
 to a provincial Court, whether the superior, or inferior, or to a 
 judicial officer, to perform judicial functions in the adjudicating 
 of matters over which the Parliament of Canada has exclusive 
 jurisdiction, no provincial legislation, in our opinion, is necessary 
 in order to enable effect to be given to such parliamentary enact- 
 ment/' Hid. SEDGEWICK, J., at p. 233. 
 
 Where a person has consented to be tried summarily by a 
 police magistrate for an offence triable by him under sec. 777, and 
 has been acquitted, the magistrate has no right to bind the prose- 
 cutor over to prefer an indictment as provided by sec. 688 of the 
 Code, which relaltes to preliminary inquiry. R. v. Burns, (1901) 4 
 C. C. C. 330. 
 
 Section 777 is wide enough to enable a police magistrate pro- 
 ceeding thereunder to find the accused, who is being summarily 
 tried with his own consent, guilty of whatever offence he might 
 have been convicted of, and amenable to whatever punishment he 
 would have been liable to if he had been tried at the general / 
 sessions. R. v. Morgan (No. 2), (1901) 5 C. C. C. 272. 
 
 But, as far as the quantum of punishment is concerned, this 
 would not apply to any of the offences enumerated in sec. 773. 
 
 A police magistrate of a city or town has power to impose the 
 same punishment for common assault as could be imposed upon a 
 person convicted on indictment. R. v. Ridehaugh, (1903) 7 C. C. ; 
 C. 340. 
 
 Common assault is not one of the offences mentioned in sec. 
 773, but keeping a disorderly house is. See R. v. Shing, 17 C. C. 
 C. 463, supra, and notes on sec. 774, supra. 
 
 Where a person is accused of inflicting grievous bodily harm, 
 on a summary trial, the magistrate may convict him of common 
 assault only, the same as if he had been tried by a jury upon an 
 indictment. And the magistrate may inflict the maximum punish- 
 ment for common assault prescribed by sec. 291 of the Code, viz., 
 one year's imprisonment or a fine of $100. R. v. Coolen, (1903) 7 
 
 + 
 
 V
 
 404 TRIAL AND SENTENCE BY MAGISTRATES. 
 
 C. C. C. 522; and see E. -v. Frank Coolen, (1904) 8 C. C.C. 157; 
 R. v. Cameron, (1901) 4 C. C. C. 385, and R. v. Hawes, (1902) 
 6 C. C, C. 238. 
 
 Where the accused consents to summary trial before a city 
 magistrate upon a charge of theft and the value of the goods stolen 
 exceeds ten dollars, and the accused pleads "not guilty," the 
 magistrate is not bound to remand him under sec. 790 (now 783), 
 but has jurisdiction under sec. 785 (now 777) to try and determine 
 the charge and impose the same punishment as might be imposed 
 by a Court of General Sessions in Ontario. R. v. Bowers ,(No. 2), 
 (1903) 6 C.' C. C. 264. 
 
 Where, in a summary trial by consent before a city magistrate 
 for common assault, the accused had been sentenced to three 
 months' imprisonment, without hard labor being mentioned in the 
 minute of adjudication, and the conviction included hard labor, 
 as did also the warrant of commitment, the prisoner was discharged 
 on habeas corpus on the ground of the variance in the minute of 
 adjudication and the conviction and commitment. Ex parte Car- 
 michael, (1903) 8 C. C. C. 19. 
 
 The Police Court of a city exercising the powers conferred 
 upon it by sec. 785 (now 777) of the Code is not a Court of 
 Record within the meaning of the Ontario Habeas Corpus Act. R. 
 v. Gibson, (1898) 2 C. C. C. 302, and see R. v. St. Glair, (1900) 
 3 C. C. C. 551. 
 
 The trial of an offender under sec. 777 must be subject to the 
 same rules of law as a trial at the General Sessions of the Peace. 
 And the same results follow on the conviction of the accused as 
 " he may be sentenced by the magistrate to the same punishment 
 as he would be liable to if he had been tried before the Court of 
 General Sessions of the Peace." So, when tried by a magistrate 
 " on a charge of being guilty of any such offence," it must mean 
 that the magistrate may find the accused guilty of " any such 
 offence " as is included in the charge. McMAHON, J., at p. 388, 
 in R. v. Cameron, (1901) 4 C. C. C. 385. 
 
 A prisoner's right to habeas' corpus in Manitoba depends on the 
 Habeas Corpus Act, 31 ch. II, c. 2, s. 2, and the writ cannot be 
 taken out on behalf of a prisoner under sentence on a conviction 
 by a police magistrate acting under sec. 777 of the Code, unless an 
 absolute want of jurisdiction is shewn. R. v. Sproule, (1886) 12 
 S. C. E. 141, followed. R. v. McEwan, (1908) 17 M. E. 470, 
 7 W. L. E. 365, 13 C. C. C. 346. Per contra, see R. v. St. Glair,
 
 PUNISHMENTS IMPOSED BY CITY MAGISTRATES. 405 
 
 supra; E. v. Pepper, (1909) 15 C. C. C. 314, and R. v. Johnston, 
 19 C. C. C. 203, 20 C. C. C. 8. 
 
 Before 1895, two justices of the peace in the North- West Terri- 
 tories had: jurisdiction to try offences under paragraphs (a) and 
 (f) of sec. 783 (now 773) of the Code, and 1 there was no appeal 
 from their decision. The extension in 1895 of this jurisdiction to 
 two justices of the peace in any province, subject to appeal where 
 the trial was had before them by virtue of the new enabling clause, 
 did not extend the right of appeal to the North- West Territories. 
 The Alberta Act, since it has continued the law theretofore in 
 force, made no change in this respect. R. v. Pisoni and R. v. 
 Taylor, 6 Terr. L. E. 238, 4 W. L. E. 527. 
 
 Where a person is charged with perjury alleged to have been 
 committed in a prior trial before the same magistrate, the magis- 
 trate should not in the trial for perjury consider his recollection 
 of the demeanour of the accused and other witnesses at the former 
 trial. His duty was to be guided by the evidence before him and 
 by that alone. R. v. Legros, (1908) 14 C. C. C. 162. 
 
 Upon a conviction for perjury, there is no authority in the 
 Code to impose a fine in lieu of imprisonment. By sec. 174 of 
 the Code, the offence of perjury is punishable by imprisonment for 
 a term not exceeding fourteen years. Ibid. By sub-sec. 2 of sec. 
 1035 of the Code, it is provided that any person convicted of an 
 indictable offence punishable with imprisonment for more than 
 five. years may be fined in addition, but not in lieu of any punish- 
 ment therein ordered. 
 
 By the same section on conviction of indictable offences punish- 
 able with imprisonment for five years or less, the accused may be 
 fined in addition to, or in lieu of, any punishment therein directed. 
 
 A police magistrate or stipendiary magistrate may summarily 
 try a prisoner with his consent by virtue of sees. 771 (a) and 777 
 of the Cbde for an offence committed outside his territorial juris- 
 diction, but in the same province. " I construe sees. 554 (now 
 653), 557 (now 665-6), and 785 (now 777), taken together to 
 mean that, when an offence is committed within the limits of a 
 province, any presence, however transitory, of the accused in any 
 part of that province will justify the exercise of as full and com- 
 plete jurisdiction as if the offence was committed where the 
 offender is apprehended, leaving to the magistrate a discretionary 
 power to send the prisoner for further inquiry, or for trial before 
 the justice having jurisdiction over the locus where the offence was
 
 406 PROCEEDINGS ON ARRAIGNMENT. 
 
 committed." FITZPATRICK, C.J., at p. 280, in Re Seeley, (1908) 
 14 C. C, C. 270, 41 S. C. R. 5; and see R. v. McEwen, supra. 
 
 Where a magistrate holding a summary trial convicted the 
 accused of an offence punishable under a statute which had Been 
 repealed, the magistrate not knowing of the repeal, he may after- 
 wards reserve a case for the Court of Appeal under see. 1014 of 
 the Code, and the conviction will be quashed. R. v. Corrigan, 
 (1909) 15 C. C. C. 310. 
 
 lit appears to me that, when the representative of the Ctown, in 
 the exercise of his judgment and discretion, declines to support a 
 conviction on its face open to such an objection as exists in the 
 present case, this Court ought not to be required to search for 
 reasons to support it. OSLER, J.A., ibid, at p. 311, and see 
 Mitchell v. Brown, (1858) 1 E. & E. 267. 
 
 The Court will take judicial notice of census returns taken 
 under a statute of Canada and published by the authority of 
 Parliament. Therefore, the Court will take judicial notice of such 
 a notorious fact as that the population of the City of Vancouver 
 was at the last Dominion census greater than 2,500. . . . The 
 doctrine of judicial notice extends to all departments of the law, 
 and is not confined to that of evidence. GREGORY, J., at p. 194, 
 in R. v. Rahamat AH (No. 1), (1910) 16 C. C. C. 193. 
 
 The Court will also take judicial notice of proclamations with- 
 out any formal request for it. Ex p. Edwards, 16 C. C. C. 522. 
 
 PROCEEDING ON ARRAIGNMENT. 
 
 778. Whenever the magistrate, before whom any person is charged as 
 aforesaid, proposes to dispose of the case summarily under the provisions 
 of this Part, such magistrate, after ascertaining the nature and extent of 
 the charge, but before the formal examination of the witnesses for the 
 prosecution, and before calling on the person charged for any statement 
 which he wishes to make, shall state to such person the substance of the 
 charge against him. 
 
 2. If the charge is not one that can be tried summarily without the 
 consent of the accused, the magistrate shall state to him, 
 
 (a) that he is charged with the offence, describing it; 
 
 (6) that he has the option to be forthwith tried by the magistrate 
 without the intervention of a jury, or to remain in custody or 
 under bail, as the Court decides, to be tried in the ordinary way by 
 the Court having criminal jurisdiction. 
 
 3. If the person charged consents to the charge being summarily tried 
 and determined as aforesaid, or if the power of the magistrate to try it 
 does not depend on the consent of the accused, the magistrate shall reduce 
 the charge to writing and read the same to such person, and shall then 
 ask him whether he is guilty or not of such charge. 
 
 4. If the person charged confesses the charge, the magistrate shall 
 then proceed to pass such sentence upon him as by law may be passed in 
 respect to such offence, subject to the provisions of this Act; but, if the
 
 OFFERING THE ACCUSED HIS ELECTION. 407 
 
 person charged says that he is not guilty, the magistrate shall then examine 
 the witnesses for the prosecution, and, when the examination has be,en 
 completed, the magistrate shall inquire of the person charged whether he 
 has any defence to make to such charge, and, if he states that he has a 
 defence, the magistrate shall hear such defence, and shall then proceed to 
 dispose of the case summarily. 
 
 It is to be borne in mind that it is only where the magisjjffite 
 " proposes to dispose of the case summarily under the provisjfciTs 
 of this Part" that he is required to put the accused to his election. 
 If the magistrate does not propose to dispose of the case i sum- 
 marily, then he will proceed with (the hearing as upon a prelimin- 
 ary inquiry under Part XIV. of the 'Code. 
 
 The magistrate ascertains the nature and extent of the charge 
 from the reading of the information, or complaint. The magis- 
 trate is to state to "such person the substance of the charge 
 against him." This is usually done by reading the information 
 to the accused. 
 
 ELECTION OP THE ACCUSED. 
 
 If the charge is not one that can be tried summarily without 
 the consent of the accused, the magistrate should state to him: 
 
 (a) That he is charged with the offence, describing it. This 
 can be done by reading the charge from the information. 
 
 (b) That he has the option to be forthwith tried by the magis- 
 trate without the intervention of a jury, or to remain in custody 
 or under bail, as the Court decides, to be tried in the ordinary way 
 by the Court having criminal jurisdiction. 
 
 It is only where the charge is not one that can be tried sum- 
 marily without the consent of the accused that the magistrate is 
 required to follow this procedure. If, for instance, the charge is 
 one for keeping a disorderly house under sec. 228 (sec. 773 (f)), 
 it is not necessary for the magistrate to proceed as indicated in 
 this section, since under sec. 774 he has absolute jurisdiction in 
 respect to this class of offence. And the procedure is not required 
 to be followed in dealing with offences under sees. 775 and 776 
 where the magistrates named have absolute jurisdiction, as also 
 magistrates having absolute jurisdiction by virtue of sub-sec. 5 of 
 sec. 777, added by the amendment of 1909. 
 
 Sub-section 2 of sec. 778 was amended in 1909, and it is 
 subject for comment as to whether paragraph (b) is any improve- 
 ment upon the phraseology of the old sub-section. The wording 
 of paragraph (b) now is identical with paragraph (b) of sec. 827
 
 408 TEEMS OF OFFER OF ELECTION. 
 
 of the Code, on an arraignment before a County Court Judge, or 
 prosecuting officer, under Part XVIII. of the Code relating to 
 "speedy trials" before County Court or District Judges. 
 
 Presumably the change was made in consequence of the fact 
 that the question as ito whether or not magistrates had strictly 
 complied with sub-sec. 2 of sec. 778, as it stood before amendment 
 in 1909, had been frequently the subject of judicial inquiry and 
 decisions on appeal and habeas corpus proceedings. 
 
 It is very questionable whether any improvement has been 
 made and whether magistrates are not more likely to err in 
 a strict compliance with paragraph (b) of sec. 778 than they were 
 before the amendment. 
 
 As the paragraph now reads, it is very confusing to the ordin- 
 ary run of prisoners. They generally understand that they have 
 the right to be tried summarily by the magistrate, or by a jury, 
 but they do not seem to comprehend the meaning of the conclud- 
 ing words " to be tried in the ordinary way by the Court having 
 jurisdiction." 
 
 Speaking from experience, the author can say that, in nine cases 
 out of ten, it was found necessary to enter into an explanation of 
 what these latter words mean in order to convey to the accused 
 their true significance. 
 
 Since all that is intended is to state to the accused the fact 
 that he can either be tried by the magistrate summarily and have 
 his case disposed of quickly, or he can wait for his trial before a 
 jury, why not convey this intelligence to the prisoner in concise 
 and apt language readily to be understood by the least intelligent? 
 
 If it is intended to let the accused know that he will also have 
 the opportunity of having a speedy trial before a County Court, 
 or District Judge, he can be told that also in plain language. 
 
 The question, as put by magistrates under the Summary Juris- 
 diction Act (1879), of England, is simplicity itself, being as fol- 
 lows : te Do you desire to be tried by a jury, or do you consent to 
 the case being dealt with summarily?" 
 
 An accused should be informed of his right to be tried by a 
 jury when the magistrate's jurisdiction to try him summarily is 
 not absolute. The fact that the accused is aware that he has the 
 right to be tried by a jury, and the further fact that the magistrate 
 is aware that the prisoner is going to plead guilt}', will not give 
 the magistrate jurisdiction to convict him if he has not been in- 
 formed of his right. Where a statute requires something to be
 
 AMENDMENT OF CHARGE AFTER CONSENT. 409 
 
 done in order to give a magistrate jurisdiction, a strict compliance 
 with such direction should be shewn on the face of the proceed- 
 ings. R. v. Cockshutt, 19 Cox 3, [1898] 1 Q. B. 582; K. v. 
 Hogarth, 24 0. E, 60. And see WEATHERBE, J., at p. 466, in R. 
 v. Shepherd, 6 C. C. C. 463. 
 
 In R. v. Walsh & Lamont, 8 C. C. C. 101, the magistrate asked 
 the prisoner : " How do you wish to be tried, before me, or before 
 a jury?" Counsel for the prisoners, instructed by them at the 
 time, answered : " They elect to be tried now before your worship." 
 The magistrate having omitted to inform the accused of the Court 
 at Avhieh the charge could probably soonest be tried by a jury, or 
 to give them any/information of that nature or to that effect, it 
 was held that there had not been a strict compliance with the re- 
 quirements of sec. 786 (now 778), and that it was imperative that 
 the magistrate should state to the accused the Court at which the 
 case can probably be soonest tried. 
 
 It was also held in that case that, upon a summary trial under 
 Part LV, (now XVI.) where the consent of the accused is essential 
 to the jurisdiction, the charge upon which the accused has so con- 
 sented to be tried cannot be enlarged or extended by amendment 
 without giving him the right of re-election upon such amended 
 charge. 
 
 If, after the charge has been read to the accused and he has 
 consented to be tried summarily,it is found necessary to amend 
 the information or charge, the magistrate wiii^ have to commence 
 the proceedings de novo, that is, he shall state to the accused that 
 hlTis charged with ano'tne'r' or different offence, describing it, and 
 repeat the question, paragraph (b), t u that he has the option, etc/' 
 If the accused consents to the amended charge being summarily 
 tried, the magistrate must read the amended charge to him, and, 
 when he has pleaded to the same, the magistrate may proceed, 
 otherwise his jurisdiction is gone. " A magistrate, after he has 
 entered upon the trial of a charge, has no power to enlarge or ex- 
 tend it by amendment without the assent of the accused to the 
 summary trial of the charge as amended, and then to deprive him 
 of the right to elect to have the amended, or the new additional, 
 charge tried by a jury." OSLER, J.A., at p. 106, E. v. Walsh, supra. 
 
 A consent to a summary trial under Part LV. (now XVI) is 
 invalid unless the accused has been specifically informed by the 
 magistrate of his right to a trial by jury. It. v. Conway, (1902) 7 
 C. C. C. 129.
 
 410 RECORD OF CONSENT TO SUMMARY TRIAL. 
 
 The question put to the accused under sub-sec. 2 of sec. 778 
 may be asked through the magistrate's clerk. R. v. Ridehaugh, 
 (1903) 7 C. C. C. 340. 
 
 " The magistrate asked him whether l he consented that the 
 charge should be tried by him, or should be sent for trial by jury at 
 the next ensuing session of the Supreme Court of Criminal Juris- 
 diction of Halifax/ This is all that the statute requires. There 
 is nothing in the statute that I can find requiring the date of the 
 sitting to be mentioned. No decision binding on me was cited 
 to the effect that the date must be named, and I am not aware of 
 any such decision. If the date is fixed by law the prisoner in 
 theory knows it as well as the magistrate. If it is not fixed by law 
 I see no good reason why the magistrate should be required to 
 know it." RUSSELL, J., at p. 356, in R. v. Reid, (1907) 12 C. 
 C. C. 352. 
 
 It is imperatively essential that every word of paragraph (b) 
 of sub-sec. 2 of sec. 778 shall be read to the accused before his 
 election. R. v. Howell, (1910) 16 C. C. C. 178, 19 M. R. 317; 
 R. v. Harris, 18 C. C. C. 392; R. v. Davis, 22 C. C. C. 34; R. v. 
 Fwrst, 22 C. C. C. 183. 
 
 In this last case, although the conviction was quashed on habeas 
 corpus, because of the failure of the magistrate to carry out the 
 directions of the sub-section, the prisoner was remanded into cus- 
 tody to be again taken before the magistrate when his election 
 might be taken in proper form. 
 
 It was held by RITCHIE, J., in R. v. Burtress, 3 C. C. C. 536, 
 that a conviction is not invalid merely because it omits to state 
 that the accused consented to be tried summarily, if in fact the 
 consent was given ; but this decision should not be relied on. See 
 following paragraphs. 
 
 In R. v. Crooks, 19 C. C. C. 150, the conviction was quashed 
 because the magistrate's record of the election shewed only that 
 the accused "consented to jurisdiction," although the Judge was 
 satisfied by affidavits read that the offer of the election had been 
 regularly made. He held, however, that the record itself must 
 shew jurisdiction. 
 
 The prisoner was in this case, as in R. v. Howell, and R. v. 
 Fuerst, supra, remanded for proceedings de novo. 
 
 In R. v. Mali, 19 C. C. C. 184, 188, and R. v. Barnes, 19 C. C. 
 C. 465, it was held sufficient for the conviction to recite that the 
 accused " consented to be tried summarily."
 
 REDUCING THE CHAKGE TO WRITING. 411 
 
 CHANGE KEDUCED TO WRITING. 
 
 By sub-sec. 3 of sec. 778, if the person charged consents itio the 
 charge heing summarily tried and determined, or if the power of 
 the magistrate to try it does not depend on the consent of the ac- 
 cused, the magistrate shall reduce the charge to writing and read 
 the same to such person, and shall then ask him if he is guilty, or 
 not, of such charge. 
 
 This seems to be an absurd duplication of work. 
 
 In accordance with sub-sees. 1 and 2 of 778 the person charged 
 has already had stated to him the substance of the charge against 
 him, and why should this formality have to be again gone through 
 with? 
 
 The information, or complaint, is the foundation of all crimi- 
 nal charges and the basis of all subsequent proceedings. In the 
 information, or complaint, the charge has been reduced to writing ; 
 why then should the magistrate have to go through the same per- 
 formance over again ? See comments on this subject in chapter V., 
 page 116. 
 
 In E. v. Shepherd, (1902) 6 C. C. C. 463, TOWNSHEND, J., 
 held that it is not necessary for the magistrate to again "reduce 
 the Charge to writing," if that had already, 'been done before the 
 consent was given by the accused. 'And that " there was no objec- 
 tion to the magistrate reading to the accused what he had already 
 written out, viz., the information." 
 
 When the charge is read to the accused; in the terms of the 
 written information and his plea taken thereto, any objection to 
 the order in which the proceedings were taken is waived by the 
 accused. R. v. McLeod, (1906) 12 C. C. C. 73. 
 
 In his judgment at pages 302-303, ANGLIN, J., in R. v. Gill, 
 (1908) 14 C. C. C. 294, amongst other things, says: "Here the 
 main purpose of the information is not to give the accused know- 
 ledge of the charge against him and which he is called upon to 
 meet; it is rather to inform the magistrate in the first instance 
 upon what charge a warrant or summons is asked against the 
 accused." 
 
 " The magistrate does not arraign the accused upon the in- 
 formation. He is expressly required, if he decides to proceed upon 
 the election of the defendant, to try him summarily for an indict- 
 able offence, to formulate the charge in writing, and to read it 
 when so formulated to the accused, and it is to the charge so
 
 412 WRITTEN! CHARGE READ ON ARRAIGNMENT. 
 
 formulated and read that the accused must be asked to plead. 
 The charge so formulated with the plea thereto of the accused 
 becomes the record upon which the magistrate proceeds to try him. 
 
 1 It corresponds to an indictment framed by a jury, or per- 
 haps still more nearly to the record to be drawn up by the Crown 
 prosecutor under sec. 827 of the Code, where an accused person 
 elects for speedy trial without a jury." 
 
 His Lordship goes on to say thalt, while in summary conviction 
 proceedings the information and conviction constitute the record, 
 in proceedings under sec. 778 the information is entirely super- 
 seded by the formulated charge prepared by the magistrate, and 
 this document, with the plea of the accused and the magistrate's 
 adjudication, together with the consequent conviction, form the 
 record. 
 
 /'In my view, therefore, the omissions from the information 
 complained of in the present instance do not affect the validity of 
 the conviction, which follows precisely in its terms the charge as 
 formulated by the magistrate." 
 
 There was in that case, returned with the information and 
 conviction, a document called by the magistrate a "minute of 
 adjudication" prepared by him separately from the informa- 
 tion, and which the learned Judge held to be a sufficient com- 
 pliance with the direction of the statute that the magistrate 
 shorrfd " reduce the charge to writing," but the weight of author- 
 ity-is-in favor of the proposition that the original information, if 
 correctly drawn, is sufficient. See R. v. Shepherd, supra, and R. v. 
 Graf, post. 
 
 In R. v. Graf, (1909,) 15 C. C. C. 193, REDDELL, J., says, at 
 p. 198 : "I see no reason why the magistrate may not have the 
 charge prepared in advance in anticipation of the prisoner's ex- 
 pected or possible choice, and I think the fact that the charge is 
 contained in a document in the form of an information is wholly 
 immaterial." 
 
 One can understand the necessity for the magistrate " reducing 
 the charge to writing " where the accused has been committed for 
 trial, or remanded by a justice under sec. 796 of the Code. But, 
 where a person is brought before a magistrate upon a charge con- 
 tained in an information which may have been taken and sworn 
 before him, and upon which the warrant was issued for the ap- 
 prehension of the accused, it does strike one as anomalous that the 
 same magistrate should have to go through the empty form of 
 again reducing the charge to writing.
 
 MAGISTRATE MAY DECLINE TO ADJUDICATE. 413 
 
 Why is it necessary to do more than read the information to 
 the accused? That conveys to him " the substance " of the charge, 
 it " describes " the offence with which he is charged, and it is not 
 only reduced to writing, but it has been signed by the informant 
 and sworn to by him before a justice of the peace. 
 
 If the accused has been arrested without a warrant, and at the 
 time he appears before the magistrate no information has been 
 laid, that is a different story. But as, in the great majority of 
 cases, persons who are charged before city magistrates have been 
 arrested after an information has been laid and warrant issued 
 before the accused appears before the magistrate, it should not be 
 necessary to draw up a new "charge," it being already in the in- 
 formation. 
 
 It has been held that, upon a summary trial with the consent 
 of the accused, section 951 (then 713) applies to summary trials 
 as well as to trials upon indictments also that the word " count " 
 as used in sec. 2 (16) and sec. 951, includes an information before 
 a justice for an indictable offence. In this case Coolen was charged 
 with assault occasioning bodily harm: he consented to be tried 
 summarily and was convicted of common assault only. The con- 
 viction was upheld. R. v. Coolen, (1904) 8 C. C. 0. 157. See, 
 also, R. v. Mah Sam, 19 C. C. C. 1. 
 
 
 
 A magistrate is not bound to assume the responsibility of bear- 
 ing and determining a case summarily under this part ; the exercise 
 of his jurisdiction is discretionary with him. See Ex parte John 
 Daok, (1895) 3 C. C. C. 73. 
 
 Even_ if the person charged before him co_nsents to be tried 
 summarily and the trial proceeds and the evidence for the prose- 
 cution has all been put in and heard by the magistrate, he may 
 still decline to proceed further with the matter. Under the pro- 
 visions of sec L 7J, if in any proceeding it Appears to the magis- 
 trate that the offence is one which, owing to a previous conviction 
 of the person charged, or from any circumstance, ought to be made 
 th^e subject of prosecution ~by indictment rather than to be disposed 
 oT' summarily, the magistrate may, before the accused person has 
 made his defence, decide not to adjudicate summarily upon the 
 caje. In this event, the magistrate will proceed as upon a pre- 
 limrnafy inquiry and commit the accused for trial unless he thinks 
 fie ought to discharge him. 
 
 The mere fact of an accused person having a previous convic- 
 tion against him will not of itself prevent the magistrate from 
 trying the offender summarily if he wishes to do so, but it is only
 
 414 PROCEEDINGS AT TRIAL UNDER SECTION 778. 
 
 an ingredient to be taken into consideration by the magistrate in 
 considering the course he thinks best to" pursue. 
 
 TRIAL PROCEDURE UNDER SECTION 778. 
 
 By sub-sec. 4 of sec. 778, if the person charged confesses the 
 charge, or admits his guilt, the magistrate will then proceed to 
 pass such sentence upon him as by law may be passed in respect 
 to such offence. 
 
 On the other hand, if the person charged pleads " not guilty/' 
 then the magistrate shall proceed to the examination of witnesses 
 for the prosecution, and the defence, if any. 
 
 The trial shall in every respect be conducted as a trial at nisi 
 prius, the only difference being that the magistrate acts as both 
 Judge and juiy. 
 
 There is nothing in the Code providing for the evidence in 
 summary trials before magistrates under this Part being taken rh 
 shortnand by a stenographer. IJecs. 683 and 6&4 specifically pro- 
 vTcie lor depositions being taken down in shorthand, but these jpro- 
 yisions relate only to procedure upon preliminary inquiry under 
 Part AlV. 
 
 Nevertheless there can be no doubt that evidence in summary 
 trials under Part XVI. may be .taken, in shorthand by a steno- 
 grapher. See R. v. Bond, 19 C. C. C. 9.6LJS1 M. R. 366. The 
 stenographer should be first sworn, and sees. 683 and 684 may be 
 tak^n as a precedent. Sec. 798 specifically provides that neither 
 the provisions of the Code relating to preliminary inquiries nor of 
 Part XV. shall apply to any proceedings under Part XVI. except 
 as specially provided for in sections 796 and 797, so that it is not 
 necessary to read over the depositions to the witnesses or have 
 them signed. R. v. Klein, 16 C. C. C. 503. 
 
 Iiti is to be inferred that, when a magistrate is invested with 
 the authority to hear and determine indictable offences authorized 
 under this part of the Code, (the trials of such cases shall 
 as nearly as possible be conducted in the same manner as if the 
 trial was had upon an indictment before a jury, and consequently 
 the same procedure as to taking evidence in Court may be fol- 
 lowed. 
 
 There is no provision in the Code relating to the examination, 
 or evidence of witnesses, upon trials for indictable offences, either 
 under this part or Part XIX. of the Code, being taken in short-
 
 PROCEDURE AFTER CHARGE AMENDED PARTICULARS. 415 
 
 'handby a stenographer; the authority for so doing is assumed as 
 a matter of course. 
 
 If the accused elects to be tried by a jury, the procedure will 
 be the same as upon a preliminary inquiry, and the accused may 
 be committed for trial on any indictable offence disclosed by the 
 depositions. See R. v. Brown, [1895] 1 Q. B. 119. 
 
 An amendment to the information or charge makes the charge 
 a new one, and all the formalities required by sec. 778 will have 
 to be gone through with anew. See R. v. Bennett, 3 0. E. 64, 
 and supra. 
 
 A defendant was arraigned on a charge of having offered for 
 sale certain lottery tickets contrary to sec. 236 (b) of the Code. 
 He consented to the charge being tried summarily by the magis- 
 trate. On the day set for trial an amended charge was read to 
 the accused charging him with selling lottery tickets and causing 
 them to l)e sold. The accused refused to plead to the amended 
 charge, and would only consent to be tried summarily upon the 
 original charge. His objection was upheld. R. v. Woods, 19 C. 
 L. T. Occ. N. 18. 
 
 A warrant of commitment must shew upon its face that the 
 defendant consented to be tried summarily. R. v. Sears, 17 C. 
 L. T. Occ. K 124. 
 
 The magistrate should keep a proper record of the proceedings 
 and of any evidence taken. R. v. Harris, 18 C. C. C. 392. 
 
 PARTICULARS. 
 
 There is no doubt that, upon a summary trial under this Part, 
 the accused may apply for and, if the magistrate sees fit to grant 
 it, obtain an order for particulars as upon a trial by indictment 
 under sec. 859 of the Code. 
 
 The order for particulars is a matter of judicial discretion. 
 R. v. Stevens, (1904) 8 C. C. C. 387, and see R. v. Sinclair, (1906) 
 12 C. C. C. 20. 
 
 " It is only required in criminal matters that the information 
 should give a concise and legal description of the offence charged, 
 and that it should contain the same certainty as an indictment. 
 Of course the description of the charge must include every in- 
 gredient required by the statute to constitute the offence. As in 
 an indictment, the statement of the offence may be in the words 
 of the enactment describing it, or declaring the transaction charged 
 to be an indictable offence."
 
 416 PARTICULARS OF CHARGE ADMISSIONS. 
 
 " The absence or the insufficiency of particulars does not vitiate 
 an indictment or an information; but, if it should be made to 
 appear that there is a reasonable necessity for more specific in- 
 formation, the Court or magistrate may, on the application of the 
 accused person, order that further particulars be given, but such 
 an order is altogether within the judicial discretion of the Judge 
 or magistrate." See judgment of WURTELE, J., at pp. 328-329, 
 in E. v. France, (1898) 1 C. C..C. 321. And see E. v. Fulton, 
 (1900) 5 C. G.C. 36. 
 
 An indictment should describe the offence charged with such 
 particularity as would enable the accused to know exactly what he 
 has to meet. See E. v. Beckwith, (1903) 7 C. C. C. 450. 
 
 ADMISSIONS. 
 
 An accused person on his trial for any indictable offence, or 
 his counsel or solicitor, may admit any fact alleged against the 
 accused so as to dispense with proof thereof. Sec. 978 of the Code. 
 
 This does not warrant the admission of improper evidence or 
 prevent the prisoner from objecting to it, though his counsel may 
 by oversight, or otherwise, have omitted to do so at the proper 
 time. R. v. Brooks, (1906) 11 C. C. C. 188; and see E. v. St. 
 Glair, (1900) 3 C. C. C. 551, 27 A. E. 308. 
 
 If a mistake is made by counsel, that does not relieve the 
 Judge in a criminal case from the duty to see that proper evi- 
 dence only is before the jury. OSLER, J., at p. 192, in E. v. Brooks, 
 supra, citing R. v. Gibson, (1887) 18 Q. B. D. 537; R. v. Saun- 
 ders, [1899] 1 Q. B. 490; E. v. Petrie, (1890) 20 0. E. 317. 
 
 The distinction between felony and misdemeanour having been 
 abolished by sec. 14 of the Code, the consent of counsel for the 
 accused, which before the Code would have applied in misde- 
 meanours only, is now effective in all indictable offences. 
 
 Evidence given on the trial of another person, including tho 
 evidence of the prisoner then called as a witness, may with the 
 consent of the prisoner's counsel be admitted in evidence both for 
 and against the prisoner. E. v. Fox, (1903) 7 C. C. C. 457. 
 
 APPEAL BY EESERVED CASE. 
 
 By section 1013 of the Code, an appeal from the judgment of 
 any Court having jurisdiction in criminal cases, or of a magis- 
 trate proceeding under sec. 777 on the trial of any person for an
 
 APPEAL BY RESERVED CASE. 417 
 
 indictable offence, shall lie upon the application of such person 
 if convicted, to the Court of Appeal, in the cases hereinafter pro- 
 vided for and in no others. If the Judges are unanimous in 
 deciding the appeal, their decision shall be final. If any of the 
 Judges dissent from the opinion of the majority, an appeal shall 
 lie to the Supreme Court of Canada. 
 
 The cases " hereinafter provided for " are those set out in sec. 
 1014 of the Code, which is as follows : 
 
 1O14. No proceeding in error shall be taken in any criminal case. 
 
 2. The Court before which any accused person is tried may, either 
 during or after the trial, reserve any question of law arising either on the 
 trial or on any of the proceedings preliminary, subsequent, or incidental 
 thereto, or arising out of the direction of the Judge for the opinion of the 
 Court of Appeal in manner hereinafter provided. 
 
 3. Either the prosecutor or the accused may during or after the trial, 
 either orally or in writing, apply to the Court to reserve any such question 
 as aforesaid, and the Court, if it refuses so to reserve it, shall neverthe- 
 less take a note of such objection. 
 
 4. After a question is reserved, the trial shall proceed as in other cases. 
 
 5. If the result is a conviction, the Court may in its discretion respite 
 the execution of the sentence or postpone sentence till the question reserved 
 has been decided, and shall in its discretion commit the person convicted 
 to prison or admit him to bail with one or two sufficient sureties, in such 
 sums as the Court thinks fit, to surrender at such time as the Court directs. 
 
 6. If the question is reserved, a' case shall be stated for the opinion of 
 the Court of Appeal. 
 
 It was held in R. v. Pertella, 44 C. L. J. 791, decided in 1908, 
 that there could be no reservation of a case after verdict except on 
 the Court's own motion. See also Ead v. R., 40 S. C. K. 272, 
 decided in the same year. 
 
 However, sub-section 3 was amended in 1909 by inserting the 
 words " or after " in the first line thereof, so that an application 
 can now be made to the magistrate, or Court, both during the trial 
 and after it, to reserve a case. 
 
 It is to be noted that the only appeal allowed to a person con- 
 victed by a magistrate adjudicating under sec. 777 of the Code is 
 that provided for by this and the subsequent section. The appeal 
 is upon questions of law only, and questions of law arising either 
 on the trial, or on any of the proceedings preliminary, subsequent 
 or incidental thereto. And either the prosecutor or the accused 
 may apply to the Court to reserve any such question. 
 
 The application can be made either orally or in writing. If 
 he refuses to reserve the question, the magistrate must neverthe- 
 less take a note of the objection. 
 
 C.C.P. 27
 
 418 PROCEEDINGS AFTER CASE RESERVED. 
 
 After a question is reserved, the trial proceeds as in other cases. 
 That is, the fact of a question being reserved does not stop or 
 interrupt the trial. The trial proceeds as if no question had been 
 reserved, or application therefor refused. And the magistrate 
 may convict. 
 
 It would seem that there is no provision for any kind of appeal 
 from the decision of a magistrate proceeding under section 773 
 on the trial of any person for an indictable offence except only 
 when any of the offences mentioned in paragraphs (a) or (f) of 
 that section is tried in any province under Part XVI. before two 
 justices of the peace sitting together. See sec. 797 as re-enacted 
 in 1913. 
 
 Section 798 effectually prevents the application of the provi- 
 sions for appeals from summary convictions contained in Part 
 XV. of the Code. 
 
 In his discretion the magistrate may either respite the execu- 
 tion of the sentence, or he may postpone the sentence till the ques- 
 tion reserved has been decided. 
 
 It is also in his discretion as to whether he commits the person 
 convicted to prison to undergo the sentence imposed, or admits 
 the prisoner to bail with one or two sufficient sureties in such 
 sums as the magistrate thinks fit, to surrender at such time as he 
 directs. 
 
 If the magistrate reserves a question, or questions, he shall 
 state a case for the opinion of the Court of Appeal. 
 
 If the magistrate refuses to reserve the question, the party 
 applying may) move the Court of Appeal on notice of motion, to 
 be given either to the accused or the prosecutor, as the case may 
 be. And the Court of Appeal may, upon the motion, and upon 
 considering such evidence, if any, as it thinks fit to receive, grant 
 or refuse such leave. See sec. 1015 of the Code. 
 
 Both the Crown and the accused have equal rights to appeal 
 on questions of law. 
 
 An application for a new trial on the ground that the verdict 
 was against the weight of evidence can only be made upon leave 
 being given by the magistrate or Court before which the trial took 
 place and only by a person convicted. And such leave may be 
 granted either during the sitting of the Court, or afterwards. If 
 the leave is given the application for a new trial shall be made to 
 the Court of Appeal. See sec. 1021 of the Codo.
 
 APPLICATION FOR LEAVE TO APPEAL. 419 
 
 If the accused is acquitted,, the Crown cannot apply for a new- 
 trial on that ground, but only by reserved case on a question of 
 law. 
 
 Upon an application made for leave to appeal after the Court 
 has refused to reserve a case, ample notice from the prisoner's 
 counsel of the application for leave ought to be given to the 
 representative of the Crown, before the application is made to the 
 Court, and the notice of motion so served should set out the 
 grounds relied upon. R. v. Lai Ping, (1904) 8 C. C. C. 467, 11 
 B. C. B. 102. 
 
 On leave to appeal being granted, the Court of Appeal may 
 direct that the Court below shall state a case as if the question 
 had been reserved, on which a reserved case had been refused by 
 the trial Judge. R. v. Sam Chdk (No. 1), 12 C. C. C. 495. 
 
 On being applied to for a reserve case the trial Judge should 
 not grant it upon a question, the determination of which either 
 way would not and did not affect his conclusions. R. v. Walkem, 
 (1908) 14 C. C. C. 122. 
 
 On a motion for a new trial under sec. 1021 of the Code, the 
 same rule should be applied as in civil cases, namely, to decide 
 whether the evidence was such that the jury, viewing the whole of 
 the evidence reasonably, could not properly find a verdict of guilty. 
 IRVING, J., at p. 227, in R. v. Jenkins, (1908) 14 C. C. C. 221. 
 
 Leave to appeal will not be granted by an appellate Court on 
 the ground of the admission of irrelevant evidence if, in the opin- 
 ion of the Court, the reception of such evidence did not occasion 
 any substantial wrong or miscarriage on the trial. R. V. Oal- 
 lagJian, (1903) 8 C. C. C. 143. See section 1019 of the Code, 
 post. 
 
 On an application to the Court of Appeal to direct a stated 
 case and for leave to appeal after refusal of the trial Judge to 
 reserve a case, the Court may, with the consent of counsel both 
 for the Crown and the prisoner, hear the appeal forthwith as if a 
 case had been stated. R. v. Blythe, (1909) 15 C. C. C. 225. 
 
 Leave to appeal to the Court of Appeal should only be granted 
 to a private prosecutor under very exceptional circumstances. R. 
 v. Burns (No. 1), (1901) 4 C. C. C. 323; and see R. v. Trepanier, 
 (1901) 4 C. C. C. 259. 
 
 In R. v. Pettipas (No. 1), 17 C. C. C. 448, the Court granted 
 leave to a private prosecutor to appeal against the decision of the 
 trial Judge suspending sentence for five years upon conviction
 
 420 PROCEDURE OX APPEAL BY RESERVED CASE. 
 
 for shooting with intent to do grievous bodily harm (sec. 273), 
 although the Crown had concurred, and ordered a case to be stated, 
 so that the merits might be inquired into. 
 
 If, pending the statement of a case upon a question reserved, 
 the Judge or magistrate before whom the trial was held dies, or 
 quits office, or if the Judge or magistrate, having reserved a ques- 
 ton, refuses or neglects to state a case, the party on whose appli- 
 cation the question was reserved may, on notice of motion to be 
 given to the accused or prosecutor, as the case may be, apply to 
 the Court of Appeal to state a case, and, if a case is thereupon 
 stated, it shall be dealt with as if it had been duly stated by such 
 Judge or magistrate. See section 1016 A., added in 1909. 
 
 By sec. 1017 the evidence may be sent to the Court of Appeal, 
 or any part thereof that is material. 
 
 And the Court of Appeal may send back any case to the Court 
 by which it was stated to have the same amended or restated. 
 
 By sec. 1018 upon hearing the appeal the Court of Appeal may, 
 (a) confirm the ruling appealed from; or (b), if of opinion that 
 the ruling was erroneous and that there has been a mis-trial in 
 consequence, direct a new trial; or (c), if it considers the sentence 
 erroneous, pass such sentence as ought to have been passed, or set 
 aside any sentence passed by the Court below and remit the case 
 to the Court below with a direction to pass the proper sentence. 
 See R. v. Edwards, (1907) 13 C. C. C. 202. 
 
 If the Court substitutes a different sentence the prisoner should 
 be brought into Court to receive sentence. Ibid. 
 
 (d) If of opinion, in a case in which the accused has been con- 
 victed, that the ruling was erroneous, and that the accused ought 
 to have been acquitted, direct that the accused shall be discharged, 
 which order shall have all the effect of an acquittal, or direct a new 
 trial; or (e) make such other order as justice requires. 
 
 This section (1018) does not make it obligatory on the Court 
 to direct a new trial in every case which comes before it under the 
 jurisdiction conferred by the Code. The language of the section 
 is permissive, and the Court, in addition to the other powers con- 
 ferred upon it, is enabled to make such other order as justice 
 requires. 
 
 " The matter is left to the Court to exercise its discretion in 
 each case as the circumstances seem to require. It follows that 
 there can be no general rule, and the Court ought not to attempt 
 to lay down, in any one case, the considerations which should
 
 PROCEDURE ON APPEAL BY RESERVED CASE. 421 
 
 govern in another. The considerations influencing the exercise of 
 discretion in one class of cases may -differ materially from those 
 affecting 'it in another class. Especially may this be so in cases 
 where the accused has been discharged and the Crown is appealing. 
 There the considerations that would govern where the accused was 
 convicted and was the appellant, would not necessarily be applic- 
 able." Moss, C.J.O., at pp. 106-107, in R. v. Burr, (1906) 12 C. 
 C. C. 103, citing R. v. Earn, (1903) 5 0. L. R. 704, 6 C. C. C. 479. 
 
 Where there has been an acquittal, the preferable practice is for 
 the trial Judge to refuse to reserve a case upon the application of 
 the prosecutor complaining of an erroneous direction, and for the 
 prosecutor to apply to the Court of Appeal under Code sec. 74& 
 (now 1016) for leave to appeal. OSLER, J.A., at p. 484, R. v. 
 Karn, supra. 
 
 The question of the weight of evidence is one entirely for the 
 jury, and, although there is a provision for granting a new trial 
 if the verdict is against the weight of evidence, it cannot be in- 
 voked on the part of the Crown. RITCHIE, J., at p. 281, in R. v. 
 Phinney, (1903) 7 C. C. C. 280. 
 
 A single prior act of the like criminal nature as the subject of 
 the charge, but not connected therewith, is not evidence proving 
 the criminal intent of the accused in the act charged. It is dis- 
 cretionary with the trial Judge to admit in reply, with leave to 
 answer the same, evidence of criminal intent which might have 
 been offered in chief. A new trial will be allowed on the ground of 
 the wrongful admission of evidence of an alleged prior similar 
 offence. R. v. Pollard, (1909) 15 C. C. C. 74. 
 
 IF NO SUBSTANTIAL WRONG THE CONVICTION STANDS. 
 
 1O19. No conviction shall be set aside nor any new trial directed, 
 although it appears that some evidence was improperly admitted or re- 
 jected, or that something not according to law was done at the trial or 
 some misdirection given, unless, in the opinion of the Court of Appeal, some 
 substantial wrong or miscarriage was thereby occasioned on the trial : Pro- 
 vided that, if the Court of Appeal is of opinion that any challenge for the 
 defence was improperly disallowed, a new trial shall be granted. 
 
 NEW TRIAL BY ORDER OF MINISTER OF JUSTICE. 
 
 If, upon any application for the mercy of the Crown on behalf 
 of any one convicted of an indictable offence, the Minister of Jus- 
 tice entertains a doubt whether such person ought to have been 
 convicted, he may, instead of advising His Majesty to remit or com- 
 mute the sentence, after such inquiry as he thinks proper, by an
 
 422 MINOR OFFENCE INCLUDED IN THAT CHARGED. 
 
 order in writing direct a new trial at such time and before such 
 Court as he may think proper. Section 1022 of the Code. 
 
 By sec. 1023 of the Code it is provided that the sentence of a 
 Court shall not be suspended by reason of an appeal unless the 
 Court expressly so directs, except where the sentence is that the 
 accused suffer death, or whipping. In all cases it shall be in the 
 discretion of the Court of Appeal in directing a new trial to order 
 the accused to be admitted to bail. 
 
 PART ONLY PROVED OF THE OFFENCE CHARGED. 
 
 A police magistrate of a city or incorporated town, who is also 
 a police magistrate in and for the whole province, may try offences 
 committed anywhere in the province. Such police magistrate at 
 the summary trial of an indictable offence may, under sec. 951 of 
 the Code, convict the accused of any offence included in the offence 
 charged, although the whole offence charged is not proved, without 
 again offering the prisoner election as to the mode of trial. R. v. 
 UcEwen, (1908) 17 M. R. 477, 13 C. C. C. 346. 
 
 Section 951 provides that every count shall be deemed divisible ; 
 and, if the commission of the offence charged as described in tho 
 enactment creating the offence, or as charged in the count, includes 
 the commission of any other offence, the person accused may be 
 convicted of any offence so included which is proved, although tho 
 whole offence .charged is not proved ; or he may be convicted of an 
 attempt to commit any offence so included. 
 
 Upon an indictment for burglary and stealing, the prisoner may 
 be convicted either of burglary, that is entering a dwelling house 
 in the night with intent to commit an indictable offence therein, or 
 of house-breaking, of stealing in a dwelling house to the amount of 
 $25 (if the property stolen be laid in the indictment to be of that 
 value), or simply of theft, according to the facts proved. R. v. 
 Compton, 3 C. & P. 418. 
 
 Upon an indictment for assaulting and unlawfully wounding 
 and ill-treating the complainant and thereby occasioning him 
 actual bodily harm, the defendant may be convicted of common 
 assault. R. v. Oliver, 30 L. J. M. C. 12 ; R. v. Yeadon, 31 L. J. 
 M. C. 70. 
 
 By sub-sec. 16 of sec. 2 of the Code, " indictment " and "count" 
 respectively include information and presentment as well as in- 
 dictment, and also any plea, replication, or other pleading, any
 
 MINOR OFFENCE INCLUDED IN THAT CHARGED. 423 
 
 formal charge under sec. 873a, and any record. And, upon a sum- 
 mary trial with consent for a charge of assault occasioning actual 
 bodily harm, the magistrate may convict of common assault. See, 
 however, R. v. Sharpe, 18 C. C. C. 132, supra, in which it was 
 decided that a magistrate, without the extended jurisdiction con- 
 ferred by section 777, could not try such a charge summarily. 
 Sec. 713 (now 951) of the Code applies to summary trials as well 
 as to trials upon an indictment. E. v. Coolen, (1904) 8 C. C. C. 
 157. 
 
 An indictment for rape includes the lesser charge of assault, 
 and a verdict thereon of common assault is properly followed by 
 a conviction, although the information was laid more than six 
 months after the commission of the offence. R. v. Edwards, 
 (1898) 2 C. C. C. 96. See R. v. West, [1898] 1 Q. B. 174; R. v. 
 Clarice, (1907) 12 C. C. C. 300. 
 
 Upon the trial of an indictment for wounding with intent to 
 disable, a verdict of " guilty without malicious intent " is equiva- 
 lent to a verdict of acquittal, although the jury were instructed 
 that, if intent to disable was negatived, they might still convict of 
 the simple offence of wounding. R. v. Slaughenwhite, (1905) 9 
 C. C. C. 1,73, 35 S. C. E. 607. 
 
 PUNISHMENT. 
 
 By sec. 1027 of the Code it is provided that, whenever a person 
 doing a certain act is declared to be guilty of any offence and to be 
 liable to punishment therefor, it shall be understood that such 
 person shall only be deemed guilty of such offence and liable to 
 such punishment after being duly convicted of such act. 
 
 A summary conviction for " unlawfully " committing an act 
 does not sufficiently charge that the act was " wilfully " done, to 
 constitute an offence under a statute which makes the latter an 
 essential element of the offence. Ex parte O'Shaughnessy, (1904) 
 8 C. C. C. 136. 
 
 A summary conviction for indecency under sec. 205 is bad if it 
 omits to state that the offence was committed "wilfully." Upon 
 motion for habeas corpus to discharge the prisoner on this ground, 
 it appeared that after the notice of motion was served a new con- 
 viction, in which the defect was cured, was substituted for the de- 
 fective one. The right to substitute a good for a bad conviction, 
 or commitment, after a motion for a habeas corpus has long been
 
 424 ENFORCEMENT OF CONVICTION. 
 
 recognized and acted upon. Application was discharged. R. v. 
 Barre, (1905) 11 C. C. C. 1, and see sec. 1130 of the Code. 
 
 Where a person is in custody upon a summary conviction, the 
 appropriate remedy to secure his discharge is by applying for a 
 writ of habeas corpus. Where an irregularity appears upon the 
 face of the proceedings, an order for discharge will not be made 
 on certiorari without habeas corpus being applied for. R. v. Goulet, 
 
 (1907) 12 C. C. C. 365. 
 
 A warrant of commitment must shew on its face that the 
 committing magistrate is one having jurisdiction to impose the 
 sentence recited therein. E..\. Hong Lee, (1909) 15 C. C. C. 39. 
 
 " There is, moreover, much to be said in favour of the view that 
 there is no inherent right in any foreigner that the proceedings 
 taken in our Courts shall be made wholly intelligible to him, even 
 though he should be charged with crime. ... In any case the 
 capacity of the interpreter is a question for the magistrate. All 
 matters connected with the interpretation of evidence, etc., are for 
 him, and his finding cannot be attacked in this way," viz., by habeas 
 corpus. RIDDELL, J., in R. v. MeceUette, (1909) 15 C. C. C. 17. 
 
 A clerical error in dating the warrant of commitment as of tho 
 day preceding the date of the information is a matter for amend- 
 ment, and is not a ground for discharge where a conviction, regu- 
 lar in form, has been returned. R. v. Farrell, (1907) 12 C. C. C. 
 524. 
 
 A stipendiary magistrate in Nova Scotia, acting within the 
 local limits of his jurisdiction, may summarily try a prisoner with 
 his consent for an offence committed outside of his territorial juris- 
 diction, but in the same province, by virtue of the powers conferred 
 by sec. 771 (a) (ii) and sec. 77,7 of the Code. Ex parte Seeley, 
 
 (1908) 13 C. C. C. 259, and see R. v. McEwen supra. 
 
 DEGREES OF PUNISHMENT. 
 
 Whenever it is provided that the offender shall be liable to 
 different degrees or kinds of punishment, the punishment to be 
 inflicted shall, subject to the limitation contained in the enactment, 
 be in the discretion of the Court or tribunal before which the con- 
 viction takes place. Section 1028 of the Code. 
 
 " Under the provisions of our law, where, as in the present 
 case, a statute prescribes as the punishment for an offence both fine 
 and imprisonment, the Court which convicts has the right in its 
 discretion to impose either a fine alone, or an imprisonment alone.
 
 PUNISHMENTS IMPOSED BY SENTENCE. 425 
 
 or both, unless the statute declares a contrary intention and ex- 
 pressly over-rides the general rule contained in sec. 932 (now 1028) 
 of the Criminal Code, which the statute in the present case does 
 not do." WURTELE, J., at pp. 20, 21, in E. v. Robidoux, (1898) 2 
 C. C. C. 19. 
 
 " Although the word ' penalty ' generally applies to pecuniary 
 punishment, its primary meaning includes punishment by im- 
 prisonment as well as punishment by fine." HENRY, J., at p. 62, 
 R. v. Gavin, (1897) 1 C. C. C. 59. 
 
 IMPRISONMENT HARD LABOUR. 
 
 On a summary trial for aggravated assault the magistrate, on 
 conviction, has jurisdiction to award costs against the accused in 
 addition to imposing the fine and imprisonment. 
 
 Imprisonment with hard labour may be imposed in default of 
 payment of fine and costs upon a summary trial for an indictable 
 offence. R. v. Burtress, (1900) 3 C. C. C. 536. 
 
 By sec. 1057 of the Code, imprisonment in a common gaol, &c., 
 shall be with, or without, hard labour in the discretion of the Court 
 or person passing sentence, if the offender is convicted on indict- 
 ment or under the provisions of Part XVI. or XVIII., or in the 
 province of Saskatchewan or Alberta before a Judge of a Superior 
 Court, or in the North- West Territories before a stipendiary 
 magistrate, or in the Yukon Territory before a Judge of the Terri- 
 torial Court. 
 
 If the certificate of sentence to imprisonment in a penitentiary 
 is irregular for the omission of the date of sentence, leave may be 
 given on habeas corpus to return an amended certificate correct- 
 ing the omission. R. v. Wright, (1905) 10 C. C. C. 461. 
 
 By sec. 1051 of the Code, everyone who is convicted of any 
 offence not punishable with death, shall be punished in the manner, 
 if any, prescribed by the statute especially relating to such offence. 
 
 And every person convicted of any indictable offence for which 
 no punishment is specially provided shall be liable to imprisonment 
 for five years. And every one who is summarily convicted of any 
 offence for which no punishment is specially provided shall be 
 liable to a penalty not exceeding fifty dollars, or to imprisonment, 
 with or without hard labour, for a term not exceeding six months, 
 or to both. Sec. 1052. 
 
 Every one who is convicted of an indictable offence not punish- 
 able with death, committed after a previous conviction for an
 
 426 SENTENCES THAT MAGISTRATE MAY IMPOSE. 
 
 indictable offence, is liable to imprisonment for ten years, unless 
 some other punishment is directed by any statute for the particular 
 offence. In such latter case the offender shall be liable to the 
 imprisonment directed, and not to any other. Sec. 1053. 
 
 Every one who is liable to imprisonment for life, or for any 
 term of years, or other term, may be sentenced to imprisonment for 
 any shorter term. Provided that no one shall be sentenced to any 
 shorter term of imprisonment than the minimum term, if any, 
 prescribed for the offence of which he is convicted. Sec. 105&. 
 
 For instance, any one convicted of stealing a post letter, bag, 
 &c., under sec. 364, is liable to imprisonment for life, or for any 
 term not less than three years. Consequently no one so convicted 
 can be sentenced for any shorter term of imprisonment than three 
 years. 
 
 CUMULATIVE PUNISHMENT. 
 
 When an offender is convicted of more offences than one, before 
 the same Court or person, at the same sitting, or when any offender, 
 under sentence or undergoing punishment for one offence, is con- 
 victed of any other offence, the Court or person passing sentence 
 may, on the "last conviction, direct that the sentences passed shall 
 take effect one after another. Sec. 1055. 
 
 IMPRISONMENT IN THE PENITENTIARY. 
 
 Section 42 of the Penitentiary Act, E. S. C. 1906, ch. 147, 
 provides as follows: 
 
 "Every one who is sentenced to imprisonment for life, or for 
 a term of years not less than two, shall be sentenced to imprison- 
 ment in the penitentiary for the province in which the conviction 
 takes place." 
 
 Imprisonment for less than two years shall be in the common 
 gaol of the district, county or place in which the sentence is pro- 
 nounced, or, if there is no common gaol there, then in that common 
 gaol which is nearest to such locality, or in some lawful prison, or 
 place of confinement other than a penitentiary, in which the 
 sentence of imprisonment may be lawfully executed. See sec. 1056 
 of the Code. 
 
 If any one is sentenced to the penitentiary, and at the same 
 sitting or term of the Court trying him is sentenced for one or 
 more other offences, to a term of imprisonment less than two
 
 IMPRISONMENT IN PENITENTIARY OR GAOL. 427 
 
 years each, he may be sentenced for such shorter term to im- 
 prisonment in the same penitentiary, such sentences to take effect 
 from the termination of his other sentence. Sec. 1056 (a). 
 
 And, if any one is sentenced for any offence, who is at the da/te 
 of such sentence serving a term of imprisonment in a penitentiary 
 for another offence, he may be sentenced for a shorter term than 
 two years to imprisonment in the same penitentiary, such sentence 
 to take effect from the termination of his existing sentence, or 
 sentences. Sec. 1056 (b). 
 
 In Manitoba and British Columbia, any one sentenced to im- 
 prisonment for a term less than two years may be sentenced to 
 any one of the common gaols in the province, unless a special 
 prison is prescribed by law. Sec. 1056 (c). 
 
 Under sec. 20 of the Prisons and Eeformatories Act, any 
 offender, whose age at the time of his trial does not, in the opinion 
 of the Court, exceed sixteen years, may be sentenced to imprison- 
 ment in any reformatory prison in the province in which the con- 
 viction takes place. 
 
 WARRANT OF COMMITMENT. 
 
 A warrant of commitment must be certain and definite. And 
 a warrant is bad if it simply directs the gaoler to " imprison " the 
 defendant for the stated time without specifying the place of im- 
 prisonment. Re J. W. King, (1901) 4 C. C. C. 426. 
 
 The commitment must be to the common gaol of the county for 
 which the justices shall be acting. 
 
 lit was held in R. v. Randolph, 4 C. C. C. 165, that, where a 
 conviction by a police magistrate on a summary trial of the 
 accused under Part XVI. of the Code imposes a longer term 
 of imprisonment than is authorized by law, the warrant of com- 
 mitment cannot be amended, as in such cases there is not a valid 
 conviction to sustain the same, on the ground stated by FERGUSON, 
 J., at p. 168, as follows: 
 
 " The provisions respecting amendments in case of summary 
 convictions do not, I think, apply to this case, which is a case of 
 summary trial." 
 
 This was followed in R. v. Shing, 17 C. C. C. 463, 20 M. R. 
 214, but is no longer law since the amendment of sec. 797 made 
 in 1913.
 
 428 CONVICTIONS NOT QUASHED FOR WANT OF FORM. 
 
 CONVICTIONS NOT QUASHED FOR WANT OF FORM. 
 
 By sub-sec. 2 of sec* 797, as enacted in 1913, it is provided 
 that the remedial provisions of sec. 1124 (which will be found 
 printed at p. 267, supra) shall apply to convictions or orders made 
 under the provisions of this Part' XVI. 
 
 Even before this enactment, it was held in R. v. Crawford, 20 
 C. C. O. 49, by all the Judges, that sec. 1124 applied to summary 
 trials, as well as summary convictions, and R. v. Sliing, supra, was 
 expressly dissented from. 
 
 By sec. 1129, no conviction, where the defendant has appeared 
 and pleaded and the merits have been tried, shall be set aside or 
 vacated in consequence of any defect of form whatever, but the 
 construction shall be such a fair and liberal construction as will 
 be agreeable to the justice of the case. 
 
 By sec. 1130 of the Code, it is specially provided that no con- 
 viction, sentence or proceeding under Part XVI. shall be quashed 
 for want of form ; and no warrant of commitment upon a convic- 
 tion under this Part shall be held void by reason of any defect 
 therein, if it is therein alleged that the offender has been con- 
 victed and there is a good and valid conviction to sustain the same. 
 
 A commitment is defective which recites a conviction that does 
 not disclose any offence within the section of the statute under 
 which the prosecution was had. R. v. Gibson, (1898) 2 C. C. C. 
 302. See, also, R. v. Beaudoin, 22 C. C. C. 312. 
 
 The commitment is not a judicial but simply a ministerial act, 
 carrying out the terms of the conviction, and is not a proceeding 
 that can be brought before the Court on certiorari. When the 
 conviction itself is valid the proper course to pursue in attacking 
 the commitment is by wav of habeas corpus. Ex parte Berlin, 
 (1904) 10 C. C. O. 65. 
 
 The Court on habeas corpus will not inquire as to whether the 
 prisoner, brought before a justice and remanded by him to gaol 
 for an offence committed in Canada, was arrested in the United 
 States and brought back to Canada without any extradition war- 
 rant' R. v. Walton, (1905) 10 C. C. C. 269. 
 
 On an application to quash a conviction the Oourt, as a condi- 
 tion to making an order quashing the same, on the ground of ex- 
 cess of jurisdiction, may provide in the order that no action shall 
 be brought against the justice or stipendiary magistrate by or 
 before whom such conviction, order or other proceeding was made 
 or had, or against any officer acting thereunder, or under any war- 
 rant issued to enforce anv such conviction or order. Sec. 1131
 
 POWER OF SUSPENDING SENTENCE. 429 
 
 of the Code. See R. v. Morningstar, (1906) 11 C. C. C. 15, 11 0. 
 L. B, 318; R. v. Kehr, (1906) 11 C. C. C. 52. 
 
 The provisions of sec. 1131 do not extend to an application by 
 way of habeas corpus in Ontario to discharge the accused from 
 custody, as the discharge has not the effect of quashing the con- 
 viction. R. v. Lowry, (1907) 13 C. O. C. 105. 
 
 In awarding punishment, whether pecuniary, or corporal, the 
 magistrate should be careful not to exceed the authority given him 
 by the statute. See R. v. Barton, 13 Q. B. 389, and Barton v. 
 Briclcnett, 13 Q. B. 393. 
 
 SUSPENDED SENTENCE. 
 
 1O81. In any case in which a person is convicted before any Court 
 of any offence punishable with not more than two years' imprisonment, 
 and no previous conviction is proved against him, if it appears to the 
 Court before which he is so convicted, that, regard being had to the age, 
 character, and antecedents of the offender, to the trivial nature of the 
 offence, and to any extenuating circumstances under which the offence was 
 committed, it is expedient that the offender be released on probation of good 
 conduct, the Court may, instead of sentencing him at once to any punish- 
 ment, direct that he be released on his entering into a recognizance, with 
 or without sureties, and during such period as the Court directs, to appear 
 and receive judgment when called upon, and in the meantime to keep the 
 peace and be of good behaviour. 
 
 2. Where the offence is punishable with more than two years' imprison- 
 ment, the Court shall have the same power as aforesaid with the concur- 
 rence of the counsel acting for the Crown in the prosecution of the offender. 
 
 3. The Court may, if he thinks fit, direct that the offender shall pay 
 the costs of the prosecution, or some portion of the same, within such 
 period and by such instalments as the Court directs. 
 
 4. Where one previous conviction and no more is proved against the 
 person so convicted and such conviction took place more than five years 
 before that for the offence in question, or was for an offence not related 
 in character to the offence in question, the Court shall have the same 
 power as aforesaid with the concurrence of the counsel acting for the 
 Crown in the prosecution of the offender. 
 
 It is provided, by sec. 1082, that before directing the release of 
 an offender, under the last preceding section, the Court shall be 
 satisfied that the defendant, or his surety, has a fixed place of 
 abode, or regular occupation in the county, or place, for which the 
 Court acts, or in which the offender is likely to live during the 
 period named for the observance of the conditions. 
 
 The provisions of sec. 1081 can be applied to " any person, 
 convicted before any Court, of any offence punishable with not 
 more than two years' imprisonment, and where no previous convic- 
 tion is proved against him." By sub-sec. 2, wehre the offence is 
 punishable with more than two years' imprisonment, the Court has 
 the same power, but only with the concurrence of the counsel acting
 
 430 PROCEDURE IN SUSPENDING SENTENCE. 
 
 for the Crown in the prosecution of the offender. In extending the 
 favour the Court shall take into consideration, (a) the age, (b) 
 the character and antecedents of the offender, (c) the trivial 
 nature of the offence, and any extenuating circumstances under 
 which the offence was committed. And the Court must be of the 
 opinion that, taking all these facts into consideration, it is ex- 
 pedient that the offender be released on probation of good conduct. 
 
 Then, instead of sentencing the offender at once to any punish- 
 ment, the Court may direct that he be released on his entering into 
 a recognizance, with or without sureties, and during such period 
 as the Court directs, to appear and receive judgment when called 
 upon, and in the meantime to keep the peace and be of good 
 behaviour. 
 
 The condition, therefore, of the bond is that for the period 
 named, say two years, the offender will, at any time during that 
 period when called upon, appear and receive judgment, and in the 
 meantime he must keep the peace and be of good behaviour. 
 
 And by sub-sec. 3 the Court may also direct that the offender 
 shall pay the costs of the prosecution, or some portion of the 
 same, within such period and by such instalments as the Court 
 directs. This may be added to the condition of the bond. 
 
 It is only upon motion by the Crown that the recognizance of 
 the defendant and his bail is estreated, or that judgment is moved 
 against the offender who has been released on probation under 
 sec. 1081. See R. v. Young, (1901) 4 C. C. C. 580, and R. v. 
 Pettipas No. 2, 18 C. O. C. 74, where it was also held that it is 
 not essential to the release that the offence be of a trivial nature, 
 if there are other circumstances such as are mentioned in sec. 
 1081. 
 
 Where the accused has been convicted after summary trial and 
 is released on suspended sentence under sec. 1081, and a recogniz- 
 ance has been entered into, the magistrate has no jurisdiction to 
 impose sentence for the original conviction unless information 
 under oath has been laid charging the accused with a breach of the 
 recognizance and a warrant has issued for his apprehension. And 
 such a proceeding must be at the instance of the Crown. R. v. 
 Siteman, (1902) 6 C. C. C. 224. 
 
 Upon a summary trial under Part LV. (now XVI.) of the 
 Code the magistrate is a " Court " within the meaning of sees. 971 
 (now 1081) and 974 (now 1026) of the Code, and he may release 
 the accused upon suspended sentence. R. v. McLellan (No. 1} } 
 (1905) 10 C. C. C. 1.
 
 PROCEDURE UPON BREACH OF RECOGNIZANCE. 431 
 
 Where the accused is released upon suspended sentence and is 
 directed to pay the costs of the informant, and the conviction does 
 not provide when the costs are to be paid, such costs are payable 
 forthwith. The magistrate is not bound to direct that these costs 
 should be payable by instalments. Ibid. 
 
 By sec. 1026 of the Code " Court," when used in the sections 
 of Part XX. relating to suspended sentence, is declared to mean 
 and include any Superior Court of criminal jurisdiction, any 
 Judge or Court within the meaning of Part XVIII., and any 
 magistrate within the meaning of Part XVI., unless the context 
 otherwise requires. These sections are 1081, 1082 and 1083 now 
 under consideration. 
 
 The proper time for proving a previous conviction against a 
 prisoner is (under sec. 1081) not upon the trial of the offence, but 
 after the trial. If the Crown does not adduce evidence of a pre- 
 vious conviction the magistrate may, on his own initiative, search 
 the records of his office for the purpose of ascertaining if the ac- 
 cused had been previously convicted by him and of proving the 
 identity of the accused. See R. v. Bonnevie, (1906) 10 C. C. C. 
 376. And see B..v. Herrell, 1 C. C. C. 510, where it was held that 
 the magistrate can act only upon evidence adduced and not upon 
 his personal knowledge as to such identity. 
 
 See also E. v. Atkinson, 18 C. C. C. 279, as to evidence of 
 identity when a certificate of a former conviction is produced, 
 giving the same name and address of the person accused. 
 
 WARRANT WHEN THE KECOGNIZANCE HAS NOT BEEN OBSERVED. 
 
 1O83. If a Court having power to deal with such offender in respect 
 of his original offence or any justice is satisfied by information on oath 
 that the offender has failed to observe any of the conditions of his recogni- 
 zance, such Court or justice may issue a warrant for his apprehension. 
 
 2. An offender, when apprehended on any such warrant, shall, if not 
 brought forthwith before the Court having power to sentence him, be 
 brought before the justice issuing such warrant or before some other justice 
 in and for the same territorial division, and such justice shall either remand 
 him by warrant until the time at which he was required by his recogni- 
 zance to appear for judgment, or until the sitting of a Court having power 
 to deal with his original offence, or admit him to bail, with a sufficient 
 surety, conditioned on his appearing for judgment. 
 
 3. The offender when so remanded may be committed to a prison, 
 either for the county or place in or for which the justice remanding him 
 acts, or for the county or place where he is bound to appear for judgment ; 
 and the warrant of remand shall order that he be brought before <the Court 
 before which he was bound to appear for judgment, or to answer as to his 
 conduct since his release. 
 
 An information on oath must be laid charging that the 
 offender has failed to observe some or all of the conditions of his
 
 432 PROCEDURE AFTER BREACH OF RECOGNIZANCE. 
 
 recognizance, and then a warrant may issue. The warrant may be 
 issued by any justice having jurisdiction, or a Court having power 
 to deal with the offender in respect of his original offence. And 
 this warrant may be endorsed or " backed " under sec. 662 of the 
 Code. 
 
 When apprehended, the offender should be brought before " the 
 Court having power to sentence him," that is, the Court before 
 which he was originally convicted. If this is not possible, then 
 he may be brought before the justice issuing the warrant, or some 
 other justice in the same territorial division. Any such justice shall 
 either remand him by warrant, (a) until the time at which he was 
 required by his recognizance to appear for judgment, or (b) until 
 the sitting of a Court having power to deal with his original 
 offence, or (c) admit him to bail with a sufficient suTety condi- 
 tioned on his appearing for judgment. 
 
 These provisions contemplate, and the inference can be readily 
 drawn that the offender may be brought before any Court " having 
 power to deal with his original offence/' That is, if the magistrate, 
 or Court, before whom he was originally convicted, is not avail- 
 able, and the offender cannot be brought before the Court, or 
 magistrate, that dealt with the original offence, then any other 
 magistrate or Court, having territorial jurisdiction and power to 
 deal with his original offence, may pass sentence upon the offender 
 as if he had been tried before such Court or magistrate in the first 
 place. This must be so since death may have removed the Judge, 
 or magistrate, who dealt with the original offence and put the 
 offender on suspended sentence. 
 
 By sub-sec. 3 the offender, when so remanded, may be com- 
 mitted to prison either for the county, or place, in and for which 
 the justice who remanded him acts, or for the county or place 
 where he is bound to appear for judgment. The warrant of re- 
 mand shall order that the offender be brought before the Court 
 before which he was bound to appear for judgment, or to answer 
 as to his conduct since his release. 
 
 As the recognizance required the offender to appear for sen- 
 tence or judgment before the Court or magistrate, before which he 
 was convicted, naturally it is before this Court, or magistrate, 
 that the offender should be brought if possible : however, any Court 
 or magistrate having jurisdiction may pass the sentence for which 
 the offender was liable, or deal with him as is deemed wise under 
 the circumstances. He may be required to enter into another 
 recognizance for good behaviour, with or without sureties, and his
 
 SUSPENDING SENTENCE FINES AND FORFEITURES. 433 
 
 case dealt with as if he was before the Gourt or magistrate for 
 sentence immediately after his conviction. 
 
 It was a condition precedent to the Court exercising the power 
 of suspended sentence, under sec. 1081, that no previous convic- 
 tion is proved against the offender. By the amendment of 1909 
 sub-sec. 4 this condition has been relaxed to the extent that, 
 where one previous conviction and no more is proved against the 
 person, and, (a) such conviction took place more than five years 
 before his present conviction, or (b) was for an offence not related 
 in character to the offence in question, the Court may, with the 
 concurrence of the counsel acting for the Crown in the prosecution 
 of the offender, exercise the power of suspending sentence. 
 
 So that, if a person is convicted for an offence in 1914 and 
 one previous conviction made in 1908 is proved against him, that 
 will not bar the right of the Court, with the consent of the Crown, 
 to put him on suspended sentence. Or if a person is convicted in 
 1910 for theft, and a previous conviction against him for assault 
 in 1909 is proved against him, the Court may also suspend sen- 
 tence. If, however, a person is convicted in December, 1910, of 
 theft, and a previous conviction in December, 1906, for the same 
 offence, or for housebreaking and theft (an offence related in 
 character) is proved against him, the Court will not be able to 
 exercise the powers granted by sec. 1081. 
 
 FINES AND FORFEITURES. 
 
 Whenever a fine may be awarded, or a penalty imposed for 
 any offence, the amount of such fine or penalty shall, within such 
 limits, if any, as are prescribed in that behalf, be in the discretion 
 of the Court or person passing sentence, or convicting, as the case 
 may be. Sec. 1029. of the Code. 
 
 A conviction must adjudge a forfeiture of the amount to the 
 fine as well as payment thereof. A prisoner is entitled to be 
 discharged under habeas corpus if the conviction merely adjudge, 
 that he " forthwith pay $100, and in default of payment to be im- 
 prisoned for six months." R. v. Crowett, (1597) 2 C. C. C. 34. 
 
 The conviction should read, " and I adjudge the said A. B. for 
 his said offence to forfeit and pay the sum of," etc. See Form 32. 
 
 C.C.P. 28 '
 
 434: FINES COSTS AND EXPENSES OF THE PROSECUTION. 
 
 FINES IN LIEU OF, OB IN ADDITION TO, OTHER PUNISHMENT. 
 
 1O35. Any person convicted by any magistrate under Part XVI. or 
 by any Court of an indictable offence punishable with imprisonment for 
 five years or less may be fined in addition to, or in lieu of, any punishment 
 otherwise authorized^ in which case the sentence may direct that, in default 
 of payment of < his fine, the person so convicted shall be imprisoned until 
 such fine is paid, or for a period not exceeding five years, to commence at 
 the end of the term of imprisonment awarded by the sentence, or forthwith 
 as the case may require. 
 
 2. Any person convicted of an indictable offence punishable with im- 
 prisonment for more than five years may be fined, in addition to, but not 
 in lieu of, any punishment otherwise ordered, and in such case, also, the 
 sentence may in like manner direct imprisonment in default of payment 
 of any fine imposed. 
 
 3. Any corporation convicted of an indictable or other offence, punish- 
 able with imprisonment, may, in lieu of the prescribed punishment, be fined 
 in the discretion of the Court before which it is convicted. 
 
 Sub-section 3 was added in 1909. 
 
 Beference should 'be had to sec. 720A, as to the procedure 
 against corporations under Part XV. And to sees. 916-920 as to 
 procedure by indictment against corporations. 
 
 Whenever any pecuniary penalty or any forfeiture is imposed 
 for any violation of any Act, and no other mode is prescribed for 
 the recovery thereof, the same may be recovered by civil action or 
 proceeding at the suit of His Majesty, or any private party suing 
 as well for His Majesty as for himself. Sec. 1038 of the Code. 
 
 COSTS AND EXPENSES OF PROSECUTION. 
 
 1044. Any Court by which, and any Judge under Part XVIII., or 
 magistrate under Part XVI., by whom judgment is pronounced or recorded, 
 upon the conviction of any person for treason or any indictable offence, in 
 addition to such sentence as may otherwise by law be passed, may condemn 
 such person to the payment of the whole or any part of the costs or ex- 
 penses incurred in and about the prosecution and conviction for the offence 
 of which he is convicted, if to such Court or Judge it seems fit so to do. 
 
 2. Such Court or Judge may include in the amount to be paid such 
 moderate allowance for loss of time as the Court or Judge, by affidavits or 
 other inquiry and examination, ascertains to be reasonable. 
 
 3. The payment of such costs and expenses, or any part thereof, may 
 be ordered by the Court or Judge to be made out of any moneys taken 
 from such person on his apprehension, if such moneys are his own. or may 
 be enforced at the instance of any person liable to pay or who has paid 
 the same in such and the same manner, subject to the provisions of this 
 Act, as the payment of any costs ordered to be paid by the judgment or 
 order of any Court of competent jurisdiction in any civil action or pro- 
 ceeding may for the time being be enforced. 
 
 4. In the meantime, until the recovery of such costs and expenses from 
 the person so convicted as aforesaid, or from his estate, the same shall be 
 paid and provided for in the same manner as if this section had not been 
 passed ; and any money which is recovered in respect thereof from the 
 person so convicted, or from his estate, shall be applicable to the reimburse- 
 ments of any person or fund by whom or out of which such costs and 
 expenses have been paid or defrayed.
 
 WHAT COSTS MAY BE AWAKDED. 435 
 
 In the absence of any regulations, some difficulty may arise as 
 to what "costs and expenses in and about the prosecution. and con- 
 viction" should be properly allowed. 
 
 It is to be recollected that the provisions of this section relate 
 solely to the prosecution of indictable offences, and have no refer- 
 ence to offences punishable on summary conviction, so that a 
 magistrate will not be bound, in convictions under Part XVI., as 
 to the amount of the costs, by the provisions of sec. 770. The 
 table of fees set out in that section have relation only "to the 
 fees to be taken before justices under Part XV." 
 
 The authority for issuing process leading to trial of indictable 
 offences is that contained in Part XIII., sees. 653, et seq. And 
 in the absence of any specific provisions in Part XIII. or XIV. 
 as to justices charging any fees for informations, warrants, sum- 
 mons for witness, etc., issued under Part XVI., it is submitted 
 that they cannot charge any fees therefor. See R. v. MeeTian (No. 
 2), 5 C. C. C. 312, and pp. 182, 359, supra; McGillivray v. Muir, 
 7 C. C. C. 360, ante, p. 106, and R. v. Tisdale, 20 U. C. R. 272. 
 
 By sec. 576 of the Code, authority is given to the " Superior 
 Courts of criminal jurisdiction" to make rules regulating the 
 sittings of the Courts and for regulating in criminal matters the 
 pleading, practice, and procedure in the Courts, including manda- 
 mus, certiorari, habeas corpus, prohibition, quo wo/rranio, bail and 
 costs. 
 
 Prom the context, one would read this to mean that the costs 
 referred to are costs generally, and, no doubt, under sub-sec, (c), 
 which is very general in its language, the Courts have power to 
 make a tariff of fees relating to all criminal procedure. 
 
 And by sec. 1047 of the Cbde any costs ordered to be paid by a 
 Court pursuant to the provisions of sees. 1045 and 1046 shall, in 
 case there is no tariff of fees provided with respect to criminal 
 proceedings, be taxed by the proper officer of the Court accord- 
 ing to the lowest scale of fees allowed in such Court. in a civil suit. 
 And, if such Court has no civil jurisdiction, the fees shall be those 
 allowed in civil suits in a Superior Court of the province accord- 
 ing to the lowest scale. 
 
 As, in a majority of the provinces, magistrates do not adjudi- 
 cate upon civil matters, except by way of summary conviction, the 
 fees allowed in civil suits in the Superior Courts of the different 
 provinces according to the lowest scale will govern. The taxing 
 officer can either be the magistrate or his clerk.
 
 436 TAXATION OF COSTS ENFORCING PAYMENT. 
 
 In England, these costs are now regulated by the " Costs in 
 Criminal Cases Act, 1908," 8 Edw. VII, c. 15. The allowances 
 to be made under this Act are fixed by the regulations of the 
 Secretary of State. 
 
 For bills of costs, see R. v. St. Louis, (1897) 1 C. C. C. 141, 
 and R. v. Gouilliould, (1903) 7 C C. C. 432. 
 
 By sub-sec. 2 of sec. 1044, the Court may include in the amount 
 of the costs or expenses a moderate allowance for loss of time. 
 This must be ascertained by affidavits, or other inquiry and ex- 
 amination, and the amount must be such as is thus ascertained to 
 be reasonable. This means an allowance for wages or salary for 
 each day's work lost by the complainant from his work, through 
 any injury sustained, or time lost by attending the trial. It is 
 very doubtful if the word " expenses " will also include any medical 
 or hospital expenses incurred by the person injured. The " costs 
 or expenses " are those incurred in and about the prosecution and 
 conviction for the offence, etc. 
 
 If the person convicted had any money on him when arrested, 
 and such money is his own, the costs and expenses may be paid 
 out of the same. Or payment may be enforced by process of the 
 Gourt itself, or recovered in a civil action. 
 
 IMPRISONMENT IN DEFAULT OF PAYMENT OF COSTS ON Coxvic- 
 TION FOR ASSAULT. 
 
 IF 
 
 1046. If a person convicted on an indictment for assault, whether 
 with or without battery and wounding, is ordered to pay costs as afore- 
 said, he shall be liable, unless the said costs are sooner paid, to three 
 months' imprisonment, in addition to the term of imprisonment, if any, to 
 which he is sentenced for the offence, and the Court may. by warrant in 
 writing, order the amount of such costs to be levied by distress and sale 
 of the goods and chattels of the offender, and paid to the prosecutor, and 
 the surplus, if any, arising from such sale, to the owner. 
 
 2. If such sum is so levied, the offender shall be released from such 
 imprisonment. 
 
 COMPENSATION FOR Loss OF PROPERTY. 
 
 1048. A Court on the trial of any person on an indictment may, if it 
 thinks fit, upon the application of any person aggrieved and immediately 
 after the conviction of the offender, award any sum of money, not ex- 
 ceeding one thousand dollars, by way of satisfaction or compensation for 
 any loss of property suffered by the applicant through or by means of 
 the offence for which such person is so convicted. 
 
 2. The amount awarded for such satisfaction or compensation shall 
 be deemed a judgment debt due to the person entitled to receive the same 
 from the person so convicted, and the order for payment of such amount 
 may be enforced in such and the same manner as in the case of any 
 costs aforesaid ordered by the Court to be paid.
 
 COMPENSATION FOE LOSS OF PROPERTY. 437 
 
 The application is to be made by " any person aggrieved." 
 This includes any one who has suffered loss to his "property" 
 through, or by means of, the offence of which the person is con- 
 victed. 
 
 The expression " party aggrieved " is not a technical expression, 
 but one to be construed according to the ordinary meaning of the 
 word. Robinson v. Currey, 7 Q. B. D. 465. See supra, notes to 
 sec. 749, p. 321, et seq. 
 
 The application must be made immediately after the conviction, 
 and the sum of money awarded cannot exceed $1,000. The amount 
 so awarded for satisfaction and compensation shall be deemed a 
 judgment debt due to the person entitled to receive the same, that 
 is, " the person aggrieved," who has made the application and to 
 whom the sum of money is awarded by the order of the Court. The 
 order of the Court may be enforced in the same manner as pro- 
 vided by sec. 1044 as to costs. 
 
 As the sum awarded under this section (1048) is by way of 
 satisfaction or compensation for any " loss of property " suffered by 
 the applicant, it would seem to apply only to losses suffered for 
 instance by arson, or burglary, or housebreaking and theft, or 
 mischief under sec. 510 of the Code, or some offence by the commis- 
 sion of which the person convicted has occasioned loss of property 
 to the applicant. It cannot apply to any injury to the person of 
 the party aggrieved; the loss must be to his property, so that if a 
 person suffers bodily injury by reason of an assault he cannot be 
 awarded compensation under this section. Such a person can be 
 granted an allowance for his loss of time under sec. 1044 (2), but 
 probably only for time lost in looking after the prosecution, attend- 
 ing the trial, &c. 
 
 COMPENSATION OF BONA FIDE PURCHASERS OF STOLEN PROPERTY. 
 
 1049. When any prisoner has been convicted, either summarily or 
 otherwise, of any theft or other offence, including stealing or unlawfully 
 obtaining any property, and it appears to the Court, by the evidence, 
 that the prisoner sold such property or part of it to any person who had 
 no knowledge that it was stolen or unlawfully obtained, and that money 
 has been taken from the prisoner on his apprehension, the Court may, on 
 application of such purchaser and on restitution of the property to its 
 owner, order that out of the money so taken from the prisoner, if it is his, 
 a sum not exceeding the amount of the proceeds of the sale be delivered to 
 such purchaser. 
 
 If it is shewn that he has sold such property, or part of it, to 
 any person who had no knowledge that it was stolen or unlawfully
 
 438 RESTITUTION OF STOLEN PROPERTY. 
 
 obtained, then, if the prisoner on his apprehension has money on 
 him, the Court, on the application of the purchaser, and on restitu- 
 tion of the property to its owner, may order that out of the money 
 so found on and taken from the prisoner, if the money is really 
 his, a sum not exceeding the proceeds of the sale shall be paid and 
 delivered to the purchaser. 
 
 To entitle a person aggrieved to an order for the restitution 
 to him of money found upon a prisoner convicted of theft from 
 the person, proof must be adduced identifying the money so found 
 as being the money that was stolen. R. v. Haverstock, (1901) 5 
 C. C. C. 113 ; but this would not prevent an order for compensation 
 out of such money on application made under sec. 1048 immedi- 
 ately after conviction. 
 
 A Superior Court of criminal jurisdiction may order the restor- 
 ation, to an accused person committed for trial, of articles found in 
 his possession and taken by the police, which are not connected 
 with the offence charged, and are not required for the purposes of 
 evidence. Ex parte McMichael, (1904) 7 C. C. C. 549. 
 
 As to what the word " property" includes, see paragraph (33) 
 of sec. 2 of the Code. 
 
 RESTITUTION OF STOLEN PROPERTY. 
 
 1O5O. If any person who is guilty of any indictable offence in steal- 
 ing, or knowingly receiving, any property, is indicted for such offence, by 
 or on behalf of the owner of the property, or his executor, or administrator, 
 and convicted thereof, or is tried before a Judge or Justice for such offence 
 under any of the foregoing provisions and convicted thereof, the property 
 shall be restored to the owner or his representative. 
 
 2. In every such case, the Court or tribunal before which such person 
 is tried for any such offence, shall have power to award, from time to time, 
 writs of restitution for the said property or to order the restitution thereof 
 in a summary manner. 
 
 3. The Court or tribunal may also, if it sees fit, award restitution of 
 the property taken from the prosecutor, or any witness for the prosecution, 
 by such offence, although the person indicted is not convicted thereof, if 
 the jury declares, as it may do, or if, in case the offender is tried without 
 a jury, it is proved to the satisfaction of the Court or tribunal by whom he 
 is tried, that such property belongs to such prosecutor or witness, and 
 that he was unlawfully deprived of it by such offence. 
 
 4. If it appears, before any award or order is made, that any valuable 
 security has been bona fide paid or discharged by any person lia'ble to the 
 payment thereof, or, being a negotiable instrument, has been 6ono fide taken 
 or received by transfer or delivery, by any person, for a just and valuable 
 consideration, without any notice or without any reasonable cause to sus- 
 pect that the same had, by any indictable offence, been stolen, or if it 
 appears that the property stolen has been transferred to an innocent pur- 
 chaser for value who has acquired a lawful title thereto, the Court or 
 tribunal shall not award or order the restitution of such security or 
 property.
 
 RESTITUTION OF STOLEN PROPERTY. 439 
 
 5. Nothing in this section contained shall apply to the case of any 
 prosecution of any trustee, banker, merchant, attorney, factor, broker or 
 other agent entrusted with the possession of goods or documents of title 
 to goods, for any indictable offence under sections three hundred and 
 fifty-eight or three hundred and ninety of this Act. 
 
 Magistrates by whom any one is convicted under this Part of 
 the Code (XVI.) are given specific power to order restitution by 
 sec. 795 of the Code, as follows: 
 
 795. The magistrate by whom any person has been convicted under 
 the provisions of this Part may order restitution of the property stolen, 
 or taken or obtained by false pretences, in any case in which the Court, 
 before whom the person convicted would have been tried but for the 
 provisions of this Part, might by law order restitution. 
 
 When a person is convicted of stealing, or receiving stolen 
 property, the property so stolen, or received, shall be restored to 
 the owner or his representative. And for that purpose the Court 
 has power from time to time to award writs of restitution, or to 
 order the restitution thereof in a summary manner. There must 
 be a conviction before the order can be made". 
 
 Although there is no conviction, if it is proved to the satisfac- 
 tion of the Court or jury that the goods in question belong to the 
 prosecutor, or a witness, and that he was unlawfully deprived of 
 them, the Court, if it sees fit, may award restitution of the prop- 
 erty. 
 
 If, before any order or award is made, it appears to the Court 
 that, (a) any valuable security has been bona fide paid, or dis- 
 charged, by any person liable to the payment thereof, or, (b), being 
 a negotiable instrument, has been bona fide taken or received by 
 transfer or delivery for a just and valuable consideration without 
 notice or any reasonable cause for suspicion that it had been stolen, 
 or, ,(c) if it appears that the property, stolen has been transferred 
 to an innocent purchaser for value who has acquired a lawful 
 title thereto, the Court shall not award, or order, restitution of 
 such security or property. 
 
 The ownership of stolen property is only changed by sale in 
 market overt: White v. Spettigue, 13 M. & W. 603 ; but, even if sold 
 in market overt, the property will still, on the conviction of the thief, 
 revest in the true owner and entitle him to recover in an action of 
 trover. Scattergood v. Sylvester, 19 L. J. Q. B. 447. 
 
 It seems to be acknowledged that there is no such thing as 
 " market overt " in Canada, enabling a thief, by a sale there, to 
 vest a good title to the property stolen in the purchaser.
 
 440 EECOVEEY OF STOLEN GOODS FROM PURCHASER. 
 
 In England stolen animals purchased bona fide in market overt 
 are the property of the purchaser until the conviction of the thief, 
 when the property reverts to the original owner. And the pur- 
 chaser cannot set up against the owner a claim for the keep of the 
 beasts during such period. Walker v. Maihews, 8 Q. B. D. 109. 
 
 The finder of lost goods has a good title to them against all the 
 world except the true owner, although the same were found in 
 another person's shop. Bridges v. Hawksworth, 18 L. T. (O.S.) 
 154, 21 L. J. Q. B. 75. See Farquharson v. King, [1902] A. C. 
 325 ; Cready v. Lindsay, 3 A. C. 459. 
 
 Where goods had been purchased with money stolen from the 
 prosecutor, and were found in the house of the prosecutor, and the 
 thief was acquitted on technical grounds and brought an action to 
 recover the goods, judgment was given for the defendant in the 
 County Court, and this judgment was upheld on appeal. Cattlcy 
 v. Loundes, 34 W. E. 139. 
 
 Where there has been a conviction for obtaining property by 
 false pratences, the Court has power to order restitution of the 
 proceeds of the goods as well as of the goods themselves. The ap- 
 plication will only be granted if the proceeds are in the hands of 
 the prisoner or of an agent of his holding them for him. R. v.JJ. 
 Central Crim. Court (Foisard's Case}, 17 Q. B. D. 598, and 18 
 Q. B. D. 314. See also Ex parte Selig, 17 C. C. C. 70. 
 
 On an indictment for stealing goods the prisoner was acquitted, 
 the defence being that the goods were his own. Held, that it was 
 virtually a finding by the jury that the goods were not the pro- 
 perty of the prosecutor, and, therefore, that the Judge had no right 
 to order them to be restored to him. R. v. Eveleth, 5 Allen N". B. 
 E. 201. 
 
 If property stolen has been sold before the conviction, an appli- 
 cation may be made to the Court before which the prisoner is con- 
 victed for the restitution of the proceeds, and, if these are in the 
 hands of the prisoner, or of an agent who holds them for him, an 
 order should be granted. If the person holding the goods does 
 not hold them for the prisoner the application should not be 
 granted. R. \. JJ. Central C. C.. supra. 
 
 Where, after the trial and conviction of a prisoner for theft, the 
 Judge who presided at the trial made an order directing that the 
 property found in his possession when he was apprehended should 
 be disposed of in a particular manner, such property not being part 
 of that which had been stolen, nor connected therewith, it was held
 
 PEOCEEDS OF SALE OF STOLEN PROPERTY. 441 
 
 that the order was bad, as the Judge had no jurisdiction to make it. 
 R. v. City of London, E. B. & E. 509, 27 L. J. M. C. 231. 
 
 Wh?re the property stolen is considerable, it is advisable to try 
 the prisoner upon all the indictments in order that the Court may 
 make restitution, for, unless after judgment on the indictments 
 upon which he has been found guilty, the prisoner pleads guilty to 
 the others, the Court cannot award restitution. 
 
 In a case where a prisoner was convicted of stealing a bill of 
 exchange and a considerable amount of money in specie, and the 
 evidence tended to shew that he must have purchased a horse with 
 part of the proceeds of the bill, the Court ordered the horse to be 
 delivered to the prosecutor. R. v. Powell, 7 C. fy P. 640. 
 
 The Court will not, in general, award restitution where the 
 owner has been guilty of gross neglect in bringing the offender to 
 justice. 2 Hawk, ch. 23, 556. 
 
 The owner shall have no more goods than those mentioned in 
 the indictment, though other goods were stolen at the same time ; 
 and the reason is because by such omission the offender might have 
 escaped. 1 Hale, 545. 
 
 The Court has no jurisdiction to direct the disposal of property 
 found in the felon's possession not forming part of that stolen. 
 R. v. City of London, supra. 
 
 Where a prisoner pleaded guilty to stealing several articles, the 
 pawnbroker into whose hands the goods had come objected to any 
 order of restitution, saying that the pledging of the goods might 
 not have amounted to felony, and that as against his title to the 
 goods the prisoner's confession ought not to prevail. The Judges 
 said they were satisfied from the depositions that the prisoner was 
 not an agent, but was guilty of felony, and an order of restitution 
 was granted. R. v. MacTclin, 5 Cox 216, and see R. v. Wollez, 8 
 Cox 337. 
 
 The provisions of sec. 1050 do not apply to the cases of prosecu- 
 tion of any trustee, &c., for an indictable offence under sees. 358 
 or 390. 
 
 BONDS TO KEEP THE PEACE. 
 
 1O58. Every magistrate under Part XVI. and every Court of criminal 
 jurisdiction before whom any person is convicted of an offence and is not 
 sentenced to death, shall have power in addition to any sentence imposed 
 upon such person, to require him forthwith to enter into his own recog- 
 nizances, or to give security to keep the peace, and be of good behaviour 
 for any term not exceeding two years, and that such person in default shall
 
 442 BONDS TO KEEP THE PEACE PUNISHMENTS. 
 
 be imprisoned for not more than one year after the expiry of his imprison- 
 ment under his sentence, or until such recognizances are sooner entered 
 into or such security sooner given. 
 
 2. Any such recognizance may be in Form 49. 
 
 The person must first be convicted of an offence, that is any 
 offence, indictable or otherwise. The recognizance is in addition 
 to any sentence imposed upon the person. He is required to forth- 
 with enter either into his own recognizance, or to give security to 
 keep the peace and be of good behaviour for any term not exceed- 
 ing two years. 
 
 In default the person, (a) shall be imprisoned for not more 
 than one year after the expiry of his imprisonment under his 
 sentence, or (b) until such recognizances are sooner entered into, 
 or security sooner given. 
 
 It is only in cases where the person convicted is ordered to find 
 sureties and makes default that imprisonment is awarded, since he 
 can himself be bound over in open Court forthwith after sentence. 
 A recognizance does not require to be signed by either the person 
 convicted or his sureties. The recognizance may be in Form 49. 
 
 Further reference can be had to sees. 748 and 1059 in the last 
 chapter, and comments thereon and cases cited. 
 
 PUNISHMENT ON CONVICTION UNDER SECTION 773 (a) OR (b). 
 
 78O. In the case of an offence charged under paragraph (a) or (6) 
 of section seven hundred and seventy-three, the magistrate, after hearing 
 the whole case for the prosecution and for the defence, shall, if he finds 
 the charge proved, convict the person charged and commit him to the com- 
 mon gaol or other place of confinement, there to be imprisoned, with or 
 without hard labour, for any term not exceeding six months. 
 
 These offences are, (a) theft, obtaining money or property 
 by false pretences, or unlawfully receiving stolen property where 
 the value does not, in the judgment of the magistrate, exceed ten 
 dollars, or (b) with attempt to commit theft. 
 
 Sub-sec. 3 of sec. 777 expressly declares that sees. 780 and 781 
 do not extend, or apply to cases tried under that section. This 
 means that any person tried with his own consent and convicted, 
 before any magistrate exercising and having jurisdiction under sec. 
 tf77, of an offence which such magistrate can only try under that 
 section, may have imposed on him the full penalties enacted for 
 these offences by the sections of the Code governing these offences, 
 and the punishment need not be limited to six months. For in- 
 stance, by sec. 386 of the Code, everyone is guilty of an indictable
 
 PUNISHMENT FOR OFFENCES (o) TO (o) OF SECTION 773. 443 
 
 offence and liable to seven years' imprisonment who steals any- 
 thing, for the stealing of which no punishment is otherwise pro- 
 vided, &c. But when the offence is one coming within sec. 773, as 
 theft of not more than $10, even a city police magistrate cannot 
 impose more than six months imprisonment. See R. v. Hayward, 
 (1902) 6 C. C. C. 399, and Ex parte McDonald, (19014) 9 C. C. C. 
 368, and comments and cases cited at page 393, supra. 
 
 PUNISHMENT FOE OFFENCES (c), (d), (e), (f) AND (g) OF 
 SECTION 773. 
 
 781. In any case summarily tried under paragraphs (c), (d), (e), 
 
 (f) or (g), of section seven hundred and seventy-three, if the magistrate 
 finds the charge proved, he may convict the person charged and commit him 
 to the common gaol or other place of confinement, there to be imprisoned, 
 with or without hard labour for any term not exceeding six months, or 
 may condemn him to pay a fine not exceeding, with the costs in the case, 
 two hundred dollars, or to both fine and imprisonment not exceeding the 
 said sum and term. 
 
 2. Such fine may be levied by warrant of distress under the hand and 
 seal of the magistrate, or the person convicted may be condemned, in 
 addition to any other imprisonment on the same conviction, to be com- 
 mitted to the common gaol or other place of confinement for a further 
 term not exceeding six months, unless such fine is sooner paid. 
 
 Paragraph (c) of sec. 773 relates to unlawful wounding or 
 inflicting grievous bodily harm, either with or without a weapon 
 or instrument, (d) indecent assaults upon males and females, (e) 
 assaulting or obstructing any public, or peace officer, engaged in 
 the execution of his duty, or any person acting in aid pf such 
 officer, (/) with keeping a disorderly house under sec. 228, or 
 
 (g) with any offence under sec. 235, betting or pool selling. 
 
 Upon conviction, the magistrate in any of these cases, sum- 
 marily tried by him, whether or not he has the extended jurisdic- 
 tion under sec. 777, in the present editor's opinion, can only 
 impose imprisonment, with or without hard labour, for any term 
 not exceeding six months, or condemn him to pay a fine not exceed- 
 ing with the costs in the case $200, or to both fine and imprison- 
 ment. 
 
 See remarks on sec. 780, supra, and comments on page 393, 
 supra. 
 
 POWERS OF ALL MAGISTRATES CURTAILED BY SEC. 781 AS 
 TO SENTENCES FOR OFFENCES UNDER SEC. 773. 
 
 So that the punishments prescribed by sees. 780 and 781, are 
 the maximum sentences that can be imposed by any magistrates 
 trying cases coming within sec. 773.
 
 444 LIMITATION OF FINES AND IMPRISONMENT. 
 
 It is to be carefully noted that the fine which can be imposed 
 under sec. 781 must not exceed $200, with costs in the case. So 
 that if a man was fined $200 and costs the conviction would be 
 bad. The best way to avoid difficulty, if costs are to be imposed, 
 is to make the fine the difference between $200 and the costs or a 
 less amount. For instance, if the costs amount to $2.35, then 
 make the fine $197.65 or less. If the full fine of $200 is imposed, 
 then the conviction should shew on the face of it that there are 
 no costs. See R. v. Perry, (1899) 35 C. L. J. 174; R. v. Cyr, 12 
 P. E. 24; R. v. StarJc, 19 C. C. C. 6/7, 21 M. E. 345. 
 
 Where the law authorizing the conviction does not specify any 
 term of imprisonment unless the penalty is sooner paid, a magis- 
 trate can only award three months' imprisonment in default of 
 payment of the fine, as provided by sec. 739 of the Code. And 
 where a person was convicted for keeping a disorderly house and 
 fined $50, and in default six months' imprisonment, the conviction 
 was held bad and the prisoner discharged. See R. v. Horion, 
 (1898) 34 C. L. J. 42; R. v. Bougie, (1899) 3 C. C. C. 487; R. V. 
 Howes, (1902) 6 C. C. C. 238. 
 
 The last two cases were distinguished in R. v. Nelson, 22 C. C. 
 C. 301, on the ground that they had reference to convictions under 
 a section of the Code which did not specify any term of imprison- 
 ment in default of payment of the fine, and it was expressly held 
 in R. v. Nelson, that sub-sec. 2 of sec. 781 authorises imprison- 
 ment for six months in default, although there be no absolute im- 
 prisonment ordered by the conviction, also that such imprisonment 
 may be with hard labour, under sees. 739 (2) and 1057. 
 
 Where there is nothing upon the face of a conviction for keep- 
 ing a house of ill-fame to shew whether the convicting magistrate 
 was acting under this Part XVI., or under summary conviction 
 Part XV., and the conviction, being defective in form, can be 
 amended under Part XV., the Court will treat it as a summary 
 conviction, and correct the same under sec. 1124 by reducing the 
 term of imprisonment where the sentence is in excess of that 
 authorized by law. R. v. Spooner, (1900) 4 C. C. C. 209. And 
 see R. v. Roberts, (1901) 4 C. C. C. 253; R. v. Carter, (1902) 
 5 C. C. C. 401, R. v. Rudolph, 17 C. C. C. 206. 
 
 Sec. 169 of the Code provides that every one who resists or 
 wilfully obstructs any peace officer in the execution of his duty, 
 etc., is guilty of an offence punishable on indictment, or on sum- 
 mary conviction, and liable if convicted on indictment to two 
 years, and on summary conviction before two justices to six
 
 JURISDICTION IN CA8ES OF THEFT, ETC., OVEE $10. 445 
 
 months' imprisonment with hard labour, or a fine of $100. This 
 section 169 is not controlled by sees. 773 and 774 of the Code. 
 See sub-sec. 2 of sec. 774 and notes on pp. 386, 387. 
 
 As to what may amount to an unlawful obstruction of 'a peace 
 officer in the execution of his duty in searching a house for liquor 
 under the New Brunswick Liquor License Act of 1903, see R. v. 
 Matheson, 21 C. C. C. 312. 
 
 The consent of the accused is not necessary to the justices 
 having jurisdiction to try the offence under sec. 169. R. v. Jack, 
 (1902) 5 C. C. C. 304, and cases cited at pp. 386-7 supra. 
 
 THEFT, FALSE PRETENCES OVER $10. 
 
 782. When any person is charged before a magistrate with theft, or 
 with having obtained property by false pretences, or with having unlaw- 
 fully received stolen property, and the value of the property stolen, obtained 
 or received exceeds ten dollars, and the evidence in support of the prosecu- 
 tion is, in the opinion of the magistrate, sufficient to put the person on 
 his trial for the offence charged, such magistrate^ if the case appears to 
 him to be one which may properly be disposed of in a summary way, shall 
 reduce the charge to writing, and shall read it to the said person, and, 
 unless such person is one who, under section seven hundred and seventy- 
 five, can be tried summarily without his consent, shall then put to him the 
 question mentioned in section seven hundred and seventy-eight, and shall 
 explain to him that he is not obliged to plead or answer before such 
 magistrate, and that, if he does not plead or answer before him, he will be 
 committed for trial in the usual course. 
 
 783. If the person charged as mentioned in the last preceding section 
 consents to be tried by the magistrate, the magistrate shall then ask him 
 whether he is guilty or not guilty of the charge, and if such person says 
 that he is guilty, the magistrate shall then cause a plea of guilty to be 
 entered upon the proceedings, and sentence him to the same punishment as 
 he would have been liable to if he had been convicted upon indictment in 
 the ordinary way ; and, if he says that he is not guilty, he shall be 
 remanded to gaol to await his trial in the usual course. 
 
 The limited jurisdiction conferred by these sections is con- 
 fined to the class of magistrates mentioned in sec. 771, and having 
 jurisdiction under sec. 773. It does not limit the jurisdiction of 
 magistrates in cities and towns acting under sec. 777. A magis- 
 trate having authority and acting under sec. 777 has, with the 
 consent of the accused, full authority to try and determine the 
 offences mentioned in sec. 782, and to impose the maximum 
 penalties. 
 
 If a person is charged before a city stipendiary with theft, and 
 the value of the goods stolen exceeds $10, such magistrate is not 
 bound to remand him under sec. 783 upon his pleading "not 
 guilty," his jurisdiction being under sec. 777, and he may try the 
 charge and impose the same punishment as might be imposed by 
 a Court of General Sessions. R. v. Bowers (No. 2), (1903) 6 C. 
 C. C. 264.
 
 446 PROCEEDINGS UNDER SECTIONS 782 AND 783. 
 
 The class of magistrates upon whom extra jurisdiction is con- 
 ferred by these sections, 782 and 783, have authority under sec. 
 773 with the consent of the accused to summarily dispose of the 
 charges of theft, false pretences and receiving stolen property 
 where in the opinion of the magistrate the value of the property 
 in question does not exceed ten dollars in value. The jurisdiction 
 conferred by sec. 782 is to enable these magistrates to deal sum- 
 marily with these offences where the value of the property exceeds 
 ten dollars. The procedure laid down must be followed strictly. 
 The proceedings up to the close of the case for the prosecution 
 are to be conducted in every respect as upon a preliminary inquiry 
 under Part XIY. And if, in the opinion of the magistrate, the 
 evidence in support of the prosecution is sufficient to put the 
 person on his trial for the offence charged, and it appears to him 
 to be a case that should be disposed of summarily, he may then 
 reduce the charge to writing and read it to the accused. The 
 language is that the magistrate " shall reduce the charge to writing 
 and shall read it to said person." But, if the charge that he has 
 been investigating has already been reduced to writing in the sworn 
 information upon which his inquiry has been based, he need not, 
 it is submitted, go through the formality of writing out the charge 
 again. On this point see notes to sub-sec. 3 of sec. 778, supra. 
 And, unless ithe accused is a seafaring person over whom the magis- 
 trate has absolute jurisdiction under sec. 775, then the magistrate 
 shall put to him the question mentioned in sec. 778, and shall ex- 
 plain to him that he is not obliged to plead or answer before such 
 magistrate, and that, if he does not plead or answer, he will be 
 committed for trial in the usual course. That is, the magistrate 
 in this event will proceed as under sec. 684 on a preliminary in- 
 quiry. If however the person charged consents to be tried by the 
 magistrate, he shall then be asked "whether he is guilty or not 
 guilty of the charge." If he says he is guilty, then such a plea 
 shall be entered on the proceedings, and the magistrate may pro- 
 ceed to sentence him to the same punishment as if he had been 
 convicted upon indictment. If however the accused person says 
 he is "not guilty," he shall be remanded to gaol in the usual 
 course. 
 
 That the proceedings, as on a preliminary inquiry, must be 
 strictly complied with, see R. v. Williams, (1905) 10 C. C. C. 330. 
 
 Magistrates of cities and towns, having jurisdiction under sec. 
 777, are not controlled in any way by sees. 782 and 783 as respects 
 the trial and disposition of the offences of theft, false pretences
 
 MAGISTRATE NOT BOUND TO TRY SUMMARILY. 447 
 
 and receiving when the value of the property exceeds $10, but may 
 proceed to the trial of such offences with the consent of the ac- 
 cused, without any preliminary inquiry. R. v. McLeod, (1906) 
 12 C. C. C. 73. 
 
 Where there is a valid conviction under sec. 777, the warrant 
 of commitment need not recite that the charge was read over to 
 the accused as required by sec. 778, before he was asked to plead, 
 for the omission, if otherwise material, is cured by sec. 1130. Ibid. 
 
 A couniy stipendiary magistrate has no jurisdiction to hold a 
 summary trial of an indictable offence where the jurisdiction de- 
 pends on sec. 777 (2) of the Code. 
 
 Such a magistrate may have jurisdiction as such within a city 
 inside of his county, yet he is not a stipendiary magistrate of the 
 city. E. v. Nar Singh, (1909) 14 C. C. C. 454. See R. v. Lee 
 Guey, (1907) 13 C. C. C. 80; R. v. Benner, 8 C. C. C. 398, and 
 R. v. Giovanetti, 5 C. C. C. 157. 
 
 Where, before sentence on a plea of guilty, it appears that the 
 accused disputed that he had so pleaded, and claimed a justifica- 
 tion or excuse for the act charged against him, the magistrate 
 should have allowed the accused to change his plea to not guilty 
 and tried the case on the evidence. R. v. Lamoihe, (1908) 15 
 C. C. C. 61. 
 
 MAGISTRATE MAY DECIDE NOT TO PROCEED. 
 
 784. If in any proceeding under this Part, it appears to the magis- 
 trate that the offence is one which, owing to a previous conviction of the 
 person charged, or from any other circumstance, ought to be made the 
 subject of prosecution by indictment rather than to be disposed of sum- 
 marily, such magistrate may, before the accused person has made his 
 defence, decide not to adjudicate summarily upon the case ; but a previous 
 conviction shall not prevent the magistrate from trying the offender sum- 
 marily, if he thinks fit so to do. 
 
 785. If, when his consent is necessary, the person charged elects to 
 be tried before a jury, the magistrate shall proceed to hold a preliminary 
 inquiry as provided in Parts XIII. and XIV., and, if the person charged 
 is committed for trial, snail state in the warrant of committal the fact of 
 such election having been made. 
 
 Where the accused has consented to summary trial, and has 
 made his defence and the magistrate has acquitted him, the 
 magistrate has no further jurisdiction, and cannot accept the 
 recognizance of the prosecutor to prefer an indictment. R. v. 
 Burn? (No. 2), (1901) 4 C. C. C. 330. 
 
 It is too late, after the accused has made his defence, for the 
 magistrate to decide to commit for trial. R. v. Hicks, 20 C. C. C. 
 192.
 
 448 COURT MUST BE OPEN TO THE PUBLIC. 
 
 FULL DEFENCE MUST BE ALLOWED. 
 
 786. In every case of summary proceedings under this Part, the person 
 accused shall be allowed to make his full answer and defence, and to have 
 all witnesses examined and cross-examined by counsel or solicitor. 
 
 9 
 
 Where the magistrate expressed his opinion that, in view of 
 the evidence adduced by the prosecution, a denial by the defend- 
 ant on oath of the charge would not alter his opinion as to her 
 guilt, and after that expression of opinion the counsel who ap- 
 peared for the defendant did not further press for her examina- 
 tion as a witness on her own behalf. Held that there was no 
 denial of the right of the defendant "to make her full answer 
 and defence to the charge." B. v. McGregor, ,(1895) 2 C. C. C. 
 410. 
 
 OBJECTIONS AT TRIAL. 
 See page 252, supra. 
 
 PROCEEDINGS IN OPEN COURT. 
 
 It is provided by sec. 787 that every. Court held by a magis- 
 trate for the purposes of this Part shall be an open public Court. 
 
 Section 645 provides for the exclusion of the public at the 
 trial of any person charged with an offence under the sections of 
 the Code therein set out, as follows : sees. 202 to 206, 211 to 220. 
 228, 238 in part, 239 in part, 292 and 293, 299 to 306 and 313 
 and 314. 
 
 The Court or Judge or justice may order that the public be 
 excluded from the room or place in which the Court is held dur- 
 ing the trial. And such order may be made in any case othor 
 than those enumerated above, where the Court or Judge, or jus- 
 tice, may be of opinion that the same will be in the interest of 
 public morals. And nothing in the section shall be construe! 
 by implication or otherwise as limiting any power heretofore pos- 
 sessed at common law by the presiding Judge, or other presiding 
 officer of any Court, of excluding the general public from the 
 court-room in any case where such Judge or officer deems such 
 exclusion necessary, or expedient. 
 
 TAKING A VIEW. 
 
 The magistrate has no power to take a view except by consent 
 of the parties, and, if he does, a conviction following will be
 
 PROCURING ATTENDANCE OF WITNESSES. 449 
 
 quashed : R. v. Crawford, 21 C. C. C. 70. See notes to this case. 
 t'6., pp. 72-78, and see, also, Re Sing Kee, 5 C. C. C. 86. 
 
 PROCURING ATTENDANCE OF WITNESSES. 
 
 788. The magistrate before whom any person is charged under the 
 provisions of this Part, may, by summons, or by writing under his hand, 
 require the attendance of any person as a witness upon the hearing of 
 the case, at a time and place to be named in such, summons, and such 
 magistrate may bind, by recognizance, all persons whom he considers neces- 
 sary to be examined, touching the matter of such charge, to attend at the 
 time and place appointed by him and then and there to give evidence upon 
 the hearing of such charge. 
 
 2. If any person so summoned, or required or bound as aforesaid, 
 neglects or refuses to attend in pursuance of such summons or recognizance, 
 and if proof is made of such person having been duly summoned as herein- 
 after mentioned, or bound by recognizance as aforesaid, the magistrate 
 before whom such person should have attended may issue a warrant to 
 compel his appearance as a witness. 
 
 789. Every summons issued under the provisions of this Part may 
 be served by delivering a copy of the summons to the person summoned, 
 or by delivering a copy of the summons to some inmate of such person's 
 usual place of abode apparently over sixteen years of age. 
 
 2. Every person required by any writing under the hand of the magis- 
 trate to attend and give evidence as aforesaid shall be deemed to have been 
 duly summoned. 
 
 Presumably the summons may be in Form 11, or to the like 
 effect, as prescribed by sec. 671. 
 
 By sec. 672, every summons for a witness issued under sec. 
 671 must be served by a constable, or other peace officer, upon the 
 person to whom it is directed, either personally, or if such person 
 cannot be conveniently met with, by leaving it for him at his last 
 or most usual place of abode, with some inmate thereof apparently 
 not under 16 years of age. There is nothing in sec. 789 about a 
 summons issued under 788 being served by a peace officer, but it 
 is advised that service should be so effected. 
 
 It is only in cases where a person is " charged under the pro- 
 visions of this Part," that is, has consented to be tried summarily 
 by a magistrate, that the provisions of sees. 788 and 789 apply. 
 If the person elects to be tried by a jury, the magistrate shall pro- 
 ceed under Parts XIII. and XIV. (sec. 785), and consequently 
 the provisions of sees. 671 to 677, inclusive, will be used for pro- 
 curing the attendance of witnesses. 
 
 The warrant which a magistrate may issue in default of a wit- 
 ness attending may be in form 12, the same as provided for under 
 sec. 673. 
 
 C.C.P. 29
 
 450 ADJUDICATION UPON THE CHAEGE. 
 
 See the comments upon and cases cited under eecs. 671, et seq., 
 supra. 
 
 . DISMISSAL OF THE CHARGE; EFFECT OF CONVICTION. 
 
 790. Whenever the magistrate finds the offence not proved, he shall 
 dismiss the charge, and make out and deliver to the person charged a certifi- 
 cate under his hand stating the fact of such dismissal. 
 
 791. Every conviction under this Part shall have the same effect as 
 a conviction upon indictment for the same offence. 
 
 792. Every person who obtains a certificate of dismissal or is con- 
 victed under the provisions of this Part, shall be released from all further 
 or other criminal proceedings for the same cause. 
 
 793. The magistrate adjudicating under the provisions of this Part 
 shall transmit the conviction or a duplicate of the certificate of dismissal, 
 with the written charge, the depositions of witnesses for the prosecution 
 and for the defence, and the statement of the accused, to the clerk of the 
 peace or other proper officer for the district, city, county or place wherein 
 the offence was committed, there to be kept by the proper officer among 
 the records of the general or quarter sessions of the peace or of any Court 
 discharging the functions of a Court of General or Quarter Sessions of the 
 Peace. 
 
 The City Clerk of Halifax is not the proper officer with whom 
 to file such papers, and the magistrate could amend or correct his 
 conviction after filing it with such clerk. R. v. Smith, 19 C. C. C. 
 253. 
 
 794. A copy of such conviction, or of such certificate of dismissal, 
 certified by the proper officer of the Court, or proved to be a true copy, 
 shall be sufficient evidence to prove a conviction or dismissal for the offence 
 mentioned therein in any legal proceedings. 
 
 The forms of conviction and certificate of dismissal under this 
 part are prescribed by sec. 799, as follows: 
 
 799. A conviction or certificate of dismissal under this Part may be 
 in the Form 55, 56 or 57, applicable to the case or to the like effect ; and, 
 whenever the nature of the case requires it. such Forms may be altered by 
 omitting the words stating the consent of the person to be tried before the 
 magistrate, and by adding the requisite words, stating the fine imposed, if 
 any, and the imprisonment, if any, to which the person convicted is to be 
 subjected, if the fine is not sooner paid. 
 
 Where a conviction omitted to set out the consent to the charge 
 being summarily tried, held that the defect was cured by sec. 
 1130, being a matter of form only. See R. v. Burtress, 3 C. C. C. 
 536. 
 
 The words used in form 55 are "(and consenting to my trying 
 the charge summarily)." 
 
 The effect of the provisions of sees. 790, 791 and 792 is to place 
 a porpon who has been tried under this Part, and been either
 
 RELEASE FROM FURTHER PROCEEDINGS. 451 
 
 acquitted or convicted, in the same position, as to his legal rights, 
 as if he had been tried upon an indictment and the jury had 
 returned a verdict of guilty or not guilty. Since, by sec. 792, a 
 person who obtains a certificate of dismissal thereby obtains a 
 release from all further or other criminal proceedings for the same 
 cause, and as, by sec. 791, a conviction under this Part shall have 
 the same effect as a conviction upon an indictment for the same 
 offence, such conviction will operate as a release from all further 
 or other criminal proceedings for the same cause. 
 
 RELEASE FROM FURTHER PROCEEDINGS. 
 
 
 
 And, by sec. 1079 of the Code, it is provided that, when 
 any person convicted of any offence has paid the sum ad- 
 judged to be paid, together with costs, if any, under such convic- 
 tion, or has received a remission thereof from the Crown, or has 
 suffered the imprisonment awarded for non-payment thereof, or 
 the imprisonment awarded in the first instance, or has been dis- 
 charged from his conviction by the justice in any case in which 
 such justice may discharge such person, he shall be released from 
 all further or other criminal proceedings for the same cause. 
 
 As to pleading autrefois acquit or autrefois convict, see sees. 
 905, 906, 907 and 908 of the Code, and notes at pages 40, 41, 
 supra. 
 
 If the former conviction was made by a magistrate who had 
 no jurisdiction to try the case, the plea of autrefois convict cannot 
 be sustained, and the burden of proof is upon the accused to shew 
 that the magistrate had such jurisdiction. R. v. Taylor, 22 C. C. 
 C. 234. See also R. v. Pope, 327. A plea of autrefois acquit 
 will not hold where it is based only on a discharge on habeas cor- 
 pus for irregularities in the proceedings before the magistrate. 
 R. v. Dick, 22 C. 0. C. 188. 
 
 Where the name of the accused, the place of the offence and 
 the character of the offence are the same in the certificate of con- 
 viction produced in proof of a plea of autrefois convict and in the 
 charge then being tried, it will be presumed that the accused is the 
 party named in such certificate without parol evidence of identity. 
 R. v. Clark, (1904) 9 C. C. C. 125. 
 
 We must bear in mind the well established principle of our 
 criminal law that a series of charges shall not be preferred, and 
 whether a person accused of a minor offence is acquitted, or con- 
 victed, he shall not be charged again on the same facts in a more
 
 452 REMAND BY JUSTICE TO MAGISTBATE. 
 
 aggravated form. 4 Bl. Com. 336; 2 Bale, 251. And see R. v. 
 Bombardier, (1905) 11 C. C. O. 216; Ex parte Flanagan, (1899) 
 5 C. C. C. 82; R. v. Quinn, (1905) 10 C. C. C. 412; R. v. Johnson, 
 17 O. C. C. 172. 
 
 REMAND BY JUSTICE TO MAGISTRATE. 
 
 796. Whenever any person is charged before any justice or justices, 
 with any offence mentioned in section seven hundred and seventy-three, and. 
 in the opinion of such justice or justices, the case is proper to be disposed 
 of summarily by a magistrate, as in this Part provided, the justice or 
 justices before whom such person is so charged may, if he or they see fit, 
 remand such person for trial before the nearest magistrate in like manner 
 in all respects as a justice or justices are authorized to commit an accused 
 person for trial at any Court : Provided that no justice or justices, in 
 any province, shall so remand any person for trial before any magistrate 
 in any other province. 
 
 2. Any person so remanded for trial before a magistrate in any city 
 may be examined and dealt with by the said magistrate or any other magis- 
 trate in the same city. 
 
 The provisions of this section are only applicable in respect to 
 the offences mentioned in sec. 773, as to which see p. 384. 
 
 The object of investing justices with the powers here granted 
 is to facilitate the trial of these offences and allow them to be 
 disposed of quickly. 
 
 A justice of the peace has alternative courses to pursue, either 
 to remand the accused before a magistrate, or commit him for trial 
 in the usual way. A justice of the peace may make a remand in 
 such cases before a magistrate in the same city in which he him- 
 self resides and has jurisdiction. 
 
 APPEALS FROM CONVICTIONS UNDER SEC. 773. 
 
 797. When any of the offences mentioned in paragraphs (a) or^ (/) 
 of section seven hundred and seventy-three is tried in any of the provinces 
 under this Part before two justices of the peace sitting together, an appeal 
 shall lie from a conviction for the offence in the same manner as from 
 summary convictions under Part XV., and all provisions of that Part re- 
 lating to appeals shall apply to every such appeal. 
 
 2. The provisions of section 1124 shall apply to convictions or orders 
 made under the provisions of this Part. 
 
 The above is sec. 797 as re-enacted in 1913, and it will be ob- 
 served that it is only when a conviction is made for an offence 
 mentioned in paragraphs (a) or (f) of sec. 773, fry two justices of 
 the peace sitting together, that the appeal will He as from a summary 
 conviction. No such appeal will lie from a conviction by a police 
 or stipendiary magistrate, whether he derives his jurisdiction from 
 sec. 771 or section 777. See R. v. Dubuc. 22 C. C. C. 426.
 
 APPEALS FROM CONVICTIONS UNDER THIS PART. 453 
 
 So that the only appeal that can be taken from the conviction 
 of a magistrate exercising jurisdiction either under sec. 771 or 
 under sec. 777 is by way of reserved case upon questions of law. 
 as provided by sees. 1013-1021. Reference can be had to the dis- 
 cussion on appeal in the previous part of this chapter. 
 
 Eeference has already been made in this work to sub-section 2 
 of sec. 797 printed above and sec. 1124 referred to. See page 261. 
 where the remedial effect of these provisions in curing defects in 
 convictions is pointed out. 
 
 PROVISIONS OF PARTS XIII. TO XV. NOT TO APPLY. 
 
 798. Except as specially provided for in the two last preceding sec- 
 tions, neither the provisions of this Act relating to preliminary inquiries 
 before justices, nor of Part XV., shall apply to any proceedings under this 
 Part. 
 
 A magistrate in dealing with a case under Part XVI. is not, by 
 virtue of sec. 711 of the Code, to take depositions in the manner 
 prescribed by sec. 682 of the Code. He is relieved from the duty 
 of reading over the depositions to the witnesses before the pris- 
 oner enters on his defence by reason of the provisions of sec. 798 
 of the Code. E. v. Klein, 11 W. L. B. 249. 
 
 For the same reason there is in general no appeal to a County 
 Tudge from a conviction under this Part. 
 
 JUVENILE OFFENDERS. 
 
 779. Whenever the person charged appears ,to be of, or about, or 
 under the age of sixteen years, and is not represented by counsel present at 
 the time, the magistrate shall not proceed under the last preceding section 
 without first asking the person charged what his age is. 
 
 2. If such person then states his age as being sixteen years or less, 
 the magistrate shall defer any further action, and shall at once cause 
 notice to be given to the parent or parents of such person, living in the 
 province, if any, or if he has no such parents, or if his parents are un- 
 known, then to the guardian or householder if any. with whom he ordin- 
 arily resides, of such person having been so charged, and of the time and 
 place when such person will be called on to make his election as to whether 
 he will be tried by the said magistrate. 
 
 3. Such notice shall allow reasonable time for the said parents, 
 guardian or householder to be present and advise the said person charged 
 before he is called on to so elect. 
 
 4. At the time fixed by such notice, or. if it appears to the satisfac- 
 tion of the magistrate that there is no person for whom notice is provided 
 as aforesaid, or that all reasonable means to give such notice have been 
 taken without success, then, at the earliest convenient time, the magistrate 
 shall proceed as in the last preceding section provided. 
 
 5. If any person notified as aforesaid is present at the time so fixed, 
 the magistrate 'shall afford him an opportunity to advise the person charged 
 before he is called upon to elect.
 
 454 LEGISLATION FOE JUVENILE DELINQUENTS. 
 
 6. The notice provided for by this section may be given by registered 
 letter, if the person to be notified does not reside in the city, town or 
 municipality where the proceeding's are had. 
 
 This is the only section in Part XVI. that has not yet been 
 considered. Although left to the last, its provisions are none the 
 less important. Since the manner of dealing with juvenile delin- 
 quents has been almost entirely revolutionized through the passing 
 in recent years of advanced legislation, one seems to feel that this 
 enactment is out of place and has no business where it is. One has 
 no .quarrel with the procedure laid down as to notice to parents, 
 etc., but it disturbs one's ideas as to how juvenile offenders should 
 be dealt with, and it is to be regretted that such antiquated legis- 
 lation should be left upon the statute book. 
 
 The latest legislation on the subject is the " Juvenile Delin- 
 quents' Act, 1908" (7-8 Edw. VII. c. 40), and it is to be hoped 
 that little time will be lost in incorporating this Act into the 
 Criminal Code and making its provisions the general law of Can- 
 ada. As the law now stands this Act can only be put in force in 
 cities, towns and other portions of the provinces by proclamation, 
 after the Governor in Council is satisfied that proper facilities for 
 the carrying out of the provisions of the Act have been provided 
 for such cities and towns, by the municipal councils or otherwise. 
 
 The modern idea of dealing with juvenile delinquents is not to 
 treat them as ordinary criminals, but as mischievous children, and 
 to keep them from associating with criminals and place them un- 
 der such restraint and observation as will tend to bring out their 
 better instincts and make them realize their duties to others. The 
 outstanding features of this new Act are the appointment and use 
 of probation officers who look after children in their homes, and to 
 whom the children report from time to time. The visitations of 
 these officers to the homes of the chidren never fail to have a bene- 
 ficial effect all around, since the parents are made to realize their 
 true responsibilities. ISText, the establishment of detention homes, 
 where children are sent who are apprehended for offences ; no gaol, 
 lock-up or police cells. The Juvenile Court is held away from 
 the neighbourhood of the Police Court, and if possible in the de- 
 tention home, and the proceedings of the Court are as informal as 
 circumstances will permit, having a due regard for the proper 
 administration of justice. Parents are notified to attend the Court 
 and their duties are fully impressed upon them. And last, but by 
 no means least, are the provisions of sec. 29 of the Act which pre- 
 scribes punishment for what is known as ' contributory ' delin- 
 quency. Any person who knowingly, or wilfully, encourage?, aids.
 
 PUNISHMENT FOE CONTRIBUTING TO DELINQUENCY. 455 
 
 abets or connives at the commission by a child of a delinquency, or 
 who knowingly or wilfully does any act producing, promoting or 
 contributing to a child's being or becoming a juvenile delinquent, 
 whether or not such person is the parent or guardian of the child, 
 or who being the parent or guardian of the child, and being able 
 to do so, wilfully neglects to do that which would directly tend to 
 prevent a child's being or becoming a juvenile delinquent, is liable 
 upon summary conviction before a Juvenile Court, or justice, to a 
 fine not exceeding $500, or to imprisonment for a period not ex- 
 ceeding one year, or to both fine and imprisonment. 
 
 A ' delinquency ' is defined by the Act to mean and include any 
 offence under the Criminal Code, or of any Dominion or Pro- 
 vincial statute, or of any by-law or ordinance of any munici- 
 pality, for the violation of which punishment by fine or imprison- 
 ment may be awarded. 
 
 As to the detention of the child pending the hearing of a de- 
 linquency charge against the parent, see Re Stenhouse, 21 C. C. C. 
 182. 
 
 A careful perusal of this section will indicate how far reach- 
 ing are its provisions, and what a salutary influence can be exer- 
 cised over both men and women who are responsible for children 
 going wrong. 
 
 THE TRIAL OF JUVENILE OFFENDERS FOR INDICTABLE 
 OFFENCES. 
 
 Part XVII. of the Code deals exclusively with the mode and 
 manner of dealing with juvenile offenders charged with theft or 
 any offence " punishable as theft " : sees. 802, 805, and, apparently, 
 it does not apply in case of any other offences. As it is hoped the 
 day is not far distant when this obsolete legislation will be re- 
 pealed and will have substituted for it the enlightened and pro- 
 gressive provisions contained in " The Juvenile Delinquents' 
 Act of 1908," further reference to this part of the Code is not 
 thought necessary. 
 
 Still, until the law is so altered, magistrates and justices, in 
 places where there are no Juvenile Courts established under the 
 present law, will have to apply the provisions of this Part when 
 juveniles come before them charged with theft or any offence 
 " punishable as theft."
 
 456 HABEAS CORPUS. 
 
 CHAPTER XII. 
 
 HABEAS CORPUS. 
 
 All that is attempted to be given in this chapter is a summary 
 of the law and general principles relating to this important 
 matter of criminal procedure. The space at our command will not 
 admit of more detail, and the reader must look elsewhere for fur- 
 ther enlightenment. 
 
 Blackstone says, at p. 129, Vol. III.: "The writ of habeas 
 corpus, the most celebrated writ in the English law," and " The 
 oppression of an obscure individual gave birth to the famous 
 Habeas Corpus Act, 31 Car. II, c. 2 (1679), which is frequently 
 considered as another Magna Oharta of the Kingdom, and by con- 
 sequence and analogy has also in subsequent times reduced the 
 general method of proceeding on these writs (though not within 
 the reach of that statute, but issuing merely at the common law) 
 to the true standard of law and liberty." 
 
 Various kinds of these write were made use of at Westminster. 
 The writs that are of modern use are: (1) the writ of habeas 
 corpus ad tesiificandum, a process issued for the purpose of re- 
 moving a prisoner from a prison or gaol to prosecute or testify 
 in Court as a witness. This writ is superseded in criminal mat- 
 ters by the provisions of s. 977 of the Code. This section provides 
 that, where the attendance of any person confined in any prison in 
 Canada is required in anyi Court of criminal jurisdiction in any 
 case cognizable therein by indictment, the Court before whom any 
 such person is required to attend, or any Judge of such Court 
 or of any superior Court, or County Gourt, or chairman of General 
 Sessions, may before or during any such term or sittings at which 
 such person is required, make an order upon the warden, or 
 gaoler of the prison, or upon the sheriff or other person having the 
 custody of such prisoner, to either deliver the prisoner to the 
 person named in the order or for himself to convey such prisoner 
 to such place. 
 
 (2) Habeas Corpus ad Subjiciendum. 
 
 The writ with which we are concerned is described by Black- 
 stone as " the great and efficacious writ in all matters of illegal 
 confinement, that of habeas corpus ad subjiciendum, directed to
 
 HABEAS CORPUS ACT,, 31 CAB. II, C. 2. 457 
 
 the person detaining another and commanding him to produce the 
 body of the prisoner with the day and cause of his caption and 
 detention to do, submit to, and receive whatsoever the Judge or 
 Court awarding such writ shall consider in that behalf. This is a 
 high prerogative writ, and therefore by the common law issuing 
 out of the Court of King's Bench not only in term time, but also 
 during the vacation by a fiat from the Chief Justice or any other 
 of the Judges, and running into all parts of the King's Domin- 
 ions, for the King is entitled at all times to have an account why 
 the liberty of any of his subjects is restrained wherever, that re- 
 straint may be inflicted." 
 
 The Habeas Corpus Act, 31 Car. II, c. 2, applies only to per- 
 sons who are detained, or imprisoned for criminal or supposed 
 criminal offences. By proclamation in 1763 the criminal law of 
 England was introduced into Canada, and by the Quebec Act of 
 1774 the criminal law of England was to obtain to the exclusion 
 of every other criminal code which might have prevailed in 
 Canada before 1763. 
 
 Thus was introduced into Canada the Habeas Corpus Act, 
 31 Car. II. In the case of Anderson, the fugitive slave, it was 
 held that this writ could be applied for in England by a person con- 
 fined in Canada or any other of the colonies. The Judges of the 
 Queen's Bench held that the prerogative power had always been 
 inherent in the English Court in favour of British subjects where- 
 ever imprisoned except in a foreign country, and had never been 
 taken away by express statute. By statute (25 Viet.) passed by 
 the Houses of Parliament in England, the English Courts were 
 deprived of their extended jurisdiction over the colonies, when- 
 ever local Courts exist by which such a jurisdiction can be exer- 
 cised. The Habeas Corpus Act, 31 Car. II, c. 2, is in force all 
 over the British Dominions. 
 
 As the Habeas Corpus Act extended only to cases where per- 
 sons are imprisoned on criminal or supposed criminal charges, 
 the other cases were left to the operation of the common law. This 
 being found defective, by the Statute 56 Geo. Ill, c. 100, the 
 writ was extended to all other cases in England. Under this Act 
 any person confined or restrained of his liberty (otherwise than 
 for criminal charges and except persons imprisoned under a judg- 
 ment or decree for debt) may apply to any Judge of the Common 
 Law Courts for a habeas corpus on shewing by affidavit that there 
 is a reasonable and probable ground for complaint.
 
 458 HABEAS CORPUS ACTS IN THE PROVINCES. 
 
 The provisions of this latter Act, 56 Geo. Ill, c. 100 (1816), 
 have been extended by special statutes in several of the Provinces 
 of Canada. In Ontario by chapter 84 of the Bevieed Statutes of 
 1914, the Ontario Habeas Corpus Act. In Nova Scotia by B. S. 
 N. S. (1900), c. 181, "Securing the liberty of the subject." In 
 New Brunswick by E. S. N, B. (1903), c. 133. 
 
 In Manitoba and in the North- West and Yukon Territories 
 and the Provinces of Saskatchewan and Alberta the laws of Eng- 
 land as they existed on the 15th day of July, 1870, in so far as 
 the same are applicable, relating to civil and criminal rights, are 
 in force, except where the same have been altered or repealed by 
 the legislatures of these Provinces or of the Territories. Conse- 
 quently the Act, 56 Geo. Ill, c. 100, is in force in these Pro- 
 vinces, and special legislation is not necessary for its promulga- 
 tion. This law is also in force in British Columbia, since the 
 laws of England, both civil and criminal, as they existed on the 
 19th day of November, 1858, in so far as they have not been 
 repealed by any Act or Ordinance passed in that Province, or by 
 the Parliament of Canada relating to criminal matters, are the 
 laws of British Columbia. 
 
 The Act, c. 45, 29 & 30 Vic., of the old Province of Canada, 
 which then included Ontario and Quebec, extended the Statute 
 of Geo. III. into these two Provinces, thus providing a remedy 
 by habeas corpus in matters other than criminal matters arising 
 under Provincial laws. The Act, 29 & 30 Vic., c. 45, is embodied 
 in Quebec law in the Eevised Statutes of Lower Canada (1861). 
 c. 95, and in Ontario in the Habeas Corpus Act of 1909, c. 51. 
 The Habeas Corpus Act of Canada (1866), 45 Vic., c. 45, which 
 applies only to tipper Canada, is still in force in Ontario in all 
 criminal matters. 
 
 Supreme Court of Canada. 
 
 By s. 62 of the Supreme Court Act every Judge of the Court 
 shall, except in matters arising out of any claim for extradition 
 under any treaty, have concurrent jurisdiction with the Courts 
 or Judges of the several Provinces to issue the writ of habeas 
 corpus ad subjiciendiim for the purpose of an inquiry into the 
 cause of commitment in any criminal case under any Act of the 
 Parliament of Canada. If the Judge refuses the writ or remands 
 the prisoner, an appeal shall lie to the Court. See In re Trepan- 
 \er, 12 S. C. E. Ill, and In re Boucher, Cassells' Digest, 325. The 
 right to issue a writ of habeas corpus being limited by sec. 51
 
 JURISDICTION OF SUPREME COURT OF CANADA. 459 
 
 (now 62) of the Supreme and Exchequer Court Act to "an inquiry 
 into the cause of commitment in any criminal case under any Act 
 of the Parliament of Canada," such writ cannot be issued in a 
 case of murder, which is a case at common law." In re Sproule, 
 12 S. C. R. 140. 
 
 Where a Judge in a province has the right to issue a writ of 
 habeas corpus returnable in term, as well as in vacation, a Judge 
 of the Supreme Court might make the writ he authorises return- 
 able in said Court in term, as well as immediately. In re Sproule, 
 12 S. C. R. 140; see Re Placide Richard, infra. 
 
 At common law the Judges of the Superior Courts can order 
 writs of habeas corpus ad subjiciendum in vacation returnable 
 either in term or vacation. Re Hawkins, 3 P. R. 239. 
 
 The section of the Supreme Court Act conferring jurisdiction 
 in habeas corpus does not constitute the individual Judges of the 
 Supreme Court separate and independent Courts, or confer on 
 the Judges jurisdiction outside of and independent of the Court, 
 and obedience to a writ issued under the said section cannot be 
 enforced by the Judge, but by the Court, which alone can issue an 
 attachment for contempt in not obeying its process. In re Sproule, 
 supra. 
 
 This section of the Supreme Court Act gives to a Judge of the 
 Supreme Court of Canada the power which the common and 
 statute law give to Judges of the superior Courts in matters of 
 habeas corpus, but it does not constitute such Judge a Court of 
 Appeal with jurisdiction to avoid or reverse judgments of pro- 
 vincial Courts. R. v. White (1901), 4 C. C. C. 430, 31 S. C. R. 
 383. 
 
 The jurisdiction of a Judge of the Supreme Court in matters 
 of habeas corpus in any criminal case is limited to an inquiry into 
 the cause of imprisonment, as disclosed by the warrant of com- 
 mitment under any Act of Parliament. GIROUARD, J., at p. 14, in 
 Ex parte MacDonald, (1896) 3 C. C. C. 10, 27 S. C. R. 683. 
 
 An application to the Supreme Court of Canada to fix a day 
 for hearing a motion to quash an appeal from an order refusing a 
 habeas corpus in an extradition matter was refused, the matter 
 being coram non judice since the Supreme and Exchequer 
 Court Act provides that "no appeal shall be allowed in any case 
 of proceedings for or upon a writ of habeas corpus arising out of 
 any claim for extradition made under any treaty." In re Lazier, 
 29 S. C. R, 630.
 
 460 PRACTICE AFFIDAVIT REQUIRED ON APPLICATION. 
 
 On application to a Judge of the Supreme Court of Canada 
 for a writ of habeas corpus, he may refer the matter to the full 
 Court which has jurisdiction to hear and dispose of it. Re Pla- 
 cide Richard, (1907) 12 C. C. C. 204. 
 
 Practice and Procedure. 
 
 By s. 576 of the Code every Superior Court of criminal juris- 
 diction may make rules of Court for regulating 1 in criminal mat- 
 ters the pleading, practice and procedure in the Courts in certain 
 subjects, including certiorari and habeas corpus. The Courts of 
 the majority of the Provinces have not made rules respecting 
 procedure in certiorari and habeas corpus, and, where there are 
 no such rules, it is usual to follow the English Crown Office 
 Eules (1906) ; Ontario, Nova Scotia and British Columbia have 
 rules of their own respecting certiorari. The Rules in use in Sas- 
 katchewan and Alberta are set forth post. 
 
 Affidavit Required on Application. 
 
 The writ of habeas corpus, whether at common law, or under 
 31 Car., does not issue as a matter of course in the first instance 
 upon application, but must be moved for on affidavit, and the 
 issue of the writ is entirely in the discretion of the Court. 
 
 In The Canadian Prisoners Case, (1839) 5 M. & W. 32, the 
 Court said : " Before granting a habeas corpus to remove a person 
 in custody we must ascertain that an affidavit is not reasonably to 
 be expected from him. An affidavit is absolutely necessary either 
 from the party who claims the writ, or from some other person, 
 so as to satisfy the Court that he is so coerced as to be unable to 
 make it." See also R. v. Black, (1899) 8 C. C. C. 465. 
 
 It is discretionary with the Judge to whom the application is 
 made to receive an affidavit of a different kind, or one not sworn 
 to by the prisoner. Re Ross, 3 P. R. 301, 10 U. C. L. J. 133. 
 and see Re A. B., (1905) 9 C. C. C. 390, infra. 
 
 Where the affidavit was not made by the prisoner and it was 
 shewn that he was a foreigner unable to speak or understand 
 English, the affidavit made by his solicitors was held sufficient, 
 as would also an affidavit made by any one on his behalf. R . v. 
 Rudland, Ex parte Kalke, (1908) 14 C. C. 0. 22, and see R. v. 
 Mclvor, (1903) 7 C. C. C. 183. 
 
 A prisoner is not entitled to a habeas corpus under the Statute 
 of Charles, unless there be " a request made in writing by him
 
 APPLICATION, HOW MADE. 461 
 
 or anyone on his behalf, attested by two witnesses who are pre- 
 sent at the delivery of the same." In Re Carmichael, 1 0. L. J. 
 243. 
 
 The affidavit of the prisoner alleging an intrinsic fact con- 
 fessing and avoiding the return, but not directly contradicting 
 it, may be read on a motion for habeas corpus. R. v. Cavelier, 
 (1896) 11 M. R, 333, 1 C. C. C. 134. 
 
 Although upon the habeas corpus and the return thereof the 
 Court can judge of the sufficiency or insufficiency of the return 
 and commitment, as the case appears on the return, yet they can- 
 not upon the bare return of the habeas corpus give any judgment 
 without the record itself be removed by certiorari. Bacon's Abr. 
 Habeas Corpus, B. 3. 
 
 APPLICATION, How MADE. 
 
 Under the Crown Office Eules, the application may be to the 
 Court or a Judge. If to the Court, it must be by motion for an 
 order, which if the Court so direct may be made absolute ex parte. 
 or the Court may grant an order nisi. If made to a Judge he 
 may order the writ to issue ex parte in the first instance, or may 
 direct a summons for the writ to issue. 
 
 No order for the issuing of a writ is to be granted where the 
 validity of any warrant, commitment, order, conviction, injunc- 
 tion or record shall be questioned unless at the time of moving a 
 copy thereof, verified by affidavit, be produced and handed to the 
 officer of the Court before the motion is made or the absence 
 thereof accounted for to the satisfaction of the Court. See B. C. 
 and N. S. Kules. 
 
 In all criminal cases the notice of application for habeas 
 corpus must be served upon the convicting justice or magistrate, 
 and upon the Crown Attorney, or other functionary representing 
 the Attorney-General. It is essential that the notice should be 
 both addressed to and served upon the Attorney-General. The 
 service may be made upon the duly authorized representative of 
 the Attorney-General. 
 
 Under the old practice the application Avas made by way of 
 petition addressed to the Court to be appealed to or to any one 
 of the Judges thereof. The modern practice is to apply to the 
 Court or Judge by notice of motion in the first instance, or by 
 rule nisi. The practice is not uniform throughout the Provinces.
 
 462 PRACTICE ON APPLICATION FOR HABEAS CORPUS. 
 
 With the notice of motion must be served copies of the affidavits 
 filed and the exhibits therein referred to. 
 
 The motion is to shew cause why a writ of habeas corpus 
 should not issue to the keeper of the gaol directing him to bring 
 before the Judge or Court the body of the prisoner detained in 
 his custody, or the order may dispense with the personal attend- 
 ance of the prisoner, and that the Court may cause to be done 
 thereupon what of right and according to law the Court shall see 
 fit to be done (and for a writ of certiorari in aid thereof). No 
 security is required from a prisoner applying for habeas corpus or 
 a writ of certiorari in aid thereof. Security is required on an 
 application for certiorari alone. 
 
 The affidavit by the prisoner must disclose grounds upon which 
 the Court can exercise its discretion, unless it is shewn that he is 
 so coerced as to be unable to make an affidavit; in this event the 
 affidavit may be made by the husband or wife of the prisoner, or 
 by his agent or friend. 
 
 It has been supposed that a mere stranger, who does not exhibit 
 any right or authority to act or represent the prisoner, cannot 
 apply. 
 
 But, in the celebrated recent case, Re Thaw (No. 2), 22 C. C. 
 C. 3, it was held by HUTCHINSON, J., following the Hottentot 
 Venus case, 13 East 195, and 10 Halsbury, p. 57, that any person is 
 entitled to obtain a writ of habeas corpus for the purpose of liber- 
 ating another from an illegal imprisonment. 
 
 If it sufficiently appears that the prisoner is suffering involun- 
 tary and wrongful restraint, no express authority from him need 
 be shewn. 
 
 With the affidavit should be exhibited a copy of the warrant 
 of detention, or the affidavit may set out that a copy has been de- 
 manded in writing and refused ; this demand must be signed either 
 by the prisoner or some one acting in his behalf. 
 
 The demand for the copy of the writ should be served person- 
 ally upon the gaoler if he is in the prison, otherwise a service upon 
 his deputy or a turnkey might be held ineffective. 
 
 The affidavit should be entitled in the Court applied to, and 
 should set out clearly and concisely in paragraphs all the facts 
 which the applicant considers necessary to establish his right to be 
 released. 
 
 If there is a defect apparent upon the face of the commitment 
 it will be sufficient to confine the affidavit to verifying the copy
 
 MAREIED WOMEN AND MINORS. 463 
 
 of the warrant of commitment and denying the guilt of the pri- 
 soner set out in the warrant. The affidavit must not be sworn 
 before the solicitor for the applicant or the prosecutor. 
 
 On the argument of an order nisi for a writ of habeas corpus, 
 the Court may in its discretion direct an order to be drawn up for 
 the prisoner's discharge instead of waiting for the issue or return 
 of the writ. When the prisoner is brought up on habeas corpus his 
 counsel shall be first heard, then the counsel for the Crown and 
 then counsel for the prisoner in reply. If the writ is disobeyed 
 application may be made to the Court on an affidavit of service 
 for an attachment, or an application may be made to the Judge 
 in Chambers for a warrant for the apprehension of the person in 
 contempt to be brought before him or some other Judge, to be 
 bound over to appear in Court to answer for his contempt or to be 
 committed to prison for want of bail. 
 
 MARRIED WOMEN AND MINORS. 
 
 A minor, or a married woman is amenable to the criminal law, 
 and if convicted, or committed before conviction, is entitled to 
 have the validity of the procedure tested under the provisions of a 
 writ of habeas corpus. HALL, J., at p. 391, in Re A. B. } (1905) 
 9 C. C. C. 390. 
 
 The person making the affidavit for the writ stands towards 
 the Court only in the relation of a witness and, if the informa- 
 tion which he supplies has the character of credibility, the Court 
 is bound to act upon it, just as it would accept the testimony 
 of the same person in an ordinary civil action or criminal trial. 
 Ibid. p. 392. 
 
 DIRECTION AND SERVICE OF THE WRIT. 
 
 The writ should be directed to the person in whose custody the 
 applicant is actually detained, whether he is an officer concerned 
 in the public administration of justice, or a private individual who, 
 under any pretence (such as that the person detained is a lunatic) 
 detains another against his will. 
 
 A writ of habeas corpus directed disjunctively to the sheriff, or 
 gaoler, was held to be bad. If a person is taken by a warrant of 
 the sheriff then the writ must be directed to him, for in contempla- 
 tion of the law the prisoner is in his custody and the writ must be 
 returned with the body. If on the other hand the prisoner ha-3 
 been immediately committed to the custody of the gaoler, as in all 
 criminal cases, it must be directed to him.
 
 464 DIRECTION AND SERVICE OF THE WRIT. 
 
 By the provisions of the Statute of Car. II, sec. 2, the person 
 to whom the writ is directed is bound to return the body of the 
 prisoner within the space of three days if within twenty miles, in 
 ten days if within one hundred miles, and within twenty days 
 for any greater distance. If the person refuses to deliver the 
 body he is liable for the first offence to a penalty of 100, and for 
 the second offence to 200. 
 
 The person to whom a habeas corpus is directed is not bound 
 to bring up one in his custody who is charged with treason or 
 felony plainly expressed in the warrant of commitment, or in 
 prison for any civil cause of action, or in execution upon process 
 after judgment from any Superior Court of competent jurisdiction. 
 
 The writ must be subscribed by the Judge awarding it: R. v. 
 Roddam, Cowp. 672, and marked in the margin "Per Statutum 
 trisecimo primo Carli Secundi Regis." The Judge should sign in 
 the margin. It should also be signed by the officer issuing it. R. 
 v. St. Clair, 3 C. C. C. 551, and it must be sealed by the seal of the 
 Court. Objections cannot be raised after the return. U. 8. v. 
 Browne, 11 C. C. C. 167. 
 
 The original writ must be served by delivering it to the person 
 to whom it is directed and who has custody of the prisoner. The 
 service must be personal if at all possible. If the writ be directed 
 to the gaoler and he is not present in the gaol, then his deputy, 
 or some one in authority, may be served. If directed to some 
 other public official, and personal service is impossible, then the 
 original may be left with a servant or agent of this official, at 
 the place where the prisoner is confined or restrained. 
 
 If the writ is directed to more than one person the original 
 shall be delivered to or left with the gaoler, or other principal 
 person, and copies served or left on each of the other persons 
 in the same manner as the writ. The service should be made in 
 such a way that the person to whom the writ is delivered should 
 understand its nature. And when the gaoler is in the gaol pains 
 should be taken to effect personal service upon him. 
 
 It is essential that the gaoler should have the original writ 
 since he is bound to produce the same with his return. Re Thaw 
 (No. 3), 22 C. C. C. 8. 
 
 The attendance of the prisoner at the argument may be dis- 
 pensed with. The consent of his solicitor to such non-attendance 
 is required to be endorsed on the writ and signed by him. 
 
 Objections to the writ must be taken by way of substantive 
 motion to set it aside, and not upon the motion for the discharge
 
 RETURN OF THE WRIT OF HABEAS CORPUS. 465 
 
 of the prisoner upon the return. If the writ has been obtained 
 on fraudulent misrepresentation the Court will quash it on motion. 
 
 As to the practice in Prince Edward Island, see Re McMurrer 
 (No. 1), 18 C. C. C. 41. 
 
 Return of a Writ of Habeas Corpus. 
 
 The return should be clear and unambiguous, and it will be 
 held bad and evasive if doubtful points of the return are not 
 cleared up by affidavit. R. v. Roberts, 2 F. & F. 272. 
 
 Upon a return to a writ of habeas corpus affidavits are not 
 admissible to shew that the offence was not committed within 
 the justice's jurisdiction. Ex parte Smith, 27 L. J. M. C. 186. 
 
 The return must shew by whom and for what cause the prisoner 
 was committed. And it will not be held invalid by mere want of 
 form, if it discloses a good cause of detainer. It should always 
 shew a good cause of detainer and in some cases the proof. Nosh's 
 Case, 4 B. & Aid. 295. 
 
 When the body is returned by the officer to whom the writ is 
 directed, he is to certify the day and cause of the caption and de- 
 tainer, as in case of an excuse for not bringing the individual. 
 Bac. Ab. Hab. Corp. (B. 9). 
 
 Where the party is in custody under the sentence of a Court 
 of competent jurisdiction to try his offence, it is sufficient to re- 
 turn that fact without stating the particulars of the original charge 
 against him (1 East. 306) ; nor, if the commitment were made 
 out by order of a Court of record, is it necessary to set it forth 
 in its precise language, as must be done when it is merely under 
 the hand of an individual magistrate. 
 
 Where a gaoler made a return stating that he held the prisoners 
 under a warrant of committal annexed, but was unable to produce 
 them for want of means to pay their conveyance, the Clerk of the 
 Court endorsed the return "returned and filed." The Judge al- 
 lowed these papers to be withdrawn so another return could ba 
 made afterwards the prisoners and the writ were produced with 
 the above return annexed. Held, (1) that the first return was in 
 fact no return, merely alleging matters of excuse for not making 
 a return; (2) that a return cannot be filed until it has been read 
 before the Judge, and that the second return was authorized. R. 
 v. Reno, 4 P. R. 281. 
 
 C.C.P. 30
 
 466 WHAT THE RETURN SHOULD CONTAIN. 
 
 Where a prisoner was committed to prison upon a warrant 
 not properly sealed, it was held to be a good return to a writ of 
 habeas corpus, that a second warrant duly sealed had been lodged 
 for his detention. Re PHpps, 11 W. R. 730, Q. B. 
 
 Where a prisoner was lodged in gaol under a bad warrant of 
 commitment, even in the nature of a conviction, a good warrant of 
 commitment subsequently delivered to the gaoler, but before the 
 rule for habeas corpus has been obtained, is a good answer to 
 such rule. Ex parte Cross, 26 L. J. M. C. 201, and see Ex parte 
 Smith, 27 L. J. M. C. 186, and R. v. Morgan, (1901) 5 C. C. 
 C. 63, 272. 
 
 An attachment may be granted for making an insufficient re- 
 turn to the first writ of habeas corpus without issuing an alias and 
 a plumes writ. R. v. Winton, 5 T. R. 89. 
 
 The truth of a return in criminal cases, it has been said, 
 cannot be controverted. 2 Hawk. P. C. 113, and see R. v. Dunn, 
 12 A. & E. 599, supra, p. 319. 
 
 On habeas corpus, bringing up a party committed by justices 
 for not finding sureties of the peace, the Court will not hear affi- 
 davits controverting the facts alleged in the articles of the peace. 
 R. v. Dunn, 12 A. & E. 599. And the Statute, 56 Geo. Ill, ch. 
 100, sec. 3, does not affect the practice in this respect. Ibid. 
 
 On a habeas corpus, the Warden of the Fleet set out in his re- 
 turn an order of the Master of the Rolls which stated that the 
 prisoner, being brought to the bar of that Court, was committed 
 for contempt. It was held that the prisoner could not be allowed 
 to contradict by affidavit the statement that he was brought to the 
 bar of the Court. In re Clarice, 6 Jur. 757. 
 
 At all events the return prima facie imports verity, and until 
 it is impeached need not be supported by affidavits or otherwise. 
 Leonard Watson's Case, 9 A. & E. 731. 
 
 A return may be impeached and its truth inquired into, and 
 it may be controverted by affidavits. If the return be false, by 
 an action at the suit of the prisoner, or by indictment. Anon. 
 Salk. 349. But an attachment will not be granted unless, perhaps, 
 the return be wilfully false. 
 
 Upon the return the prisoner's counsel may move to file it and 
 to have the prisoner called into Court and the return read, after 
 which the counsel may argue for the prisoner's discharge. 
 
 The King's Bench may remand the prisoner to the same gaol 
 from whence he came and order him to be brought up from time
 
 ADMITTING TO BAIL ON REMAND. 467 
 
 to time until they have determined to discharge or detain him: 
 Bac. Ab. Hab. Corp. 13; or may during a reasonable time bail 
 the prisoner de die in diem until they have come to a decision. 
 Ibid and R. v. Bethel, 5 Mod. 19. 
 
 If a corpus delecti appear on the depositions (which the Court 
 always look to) the Court will remand the prisoner though the 
 warrant of commitment be informal. R. v. Homer, 1 Leach C. 
 C. 305; R. v. Marks, 3 East 157; Ex parte Krans, 1 B. & C. 258. 
 
 Recognizance on Remand. 
 
 If the Court or a Judge determine that the party shall be re- 
 leased from custody pending his trial, he must thereupon enter 
 into a recognizance to appear on his trial, and the writ, the return 
 and recognizance must be certified into the Court where the trial 
 is to take place. 31 Car. II, ch. 2, sec. 3. 
 
 The rule is, where the offence is prima facie great, to require 
 good and ample bail. Moderation nevertheless is to be observed, 
 and such bail only is to be required as the party is able to procure, 
 for otherwise the allowance of bail would be a mere colour for 
 imprisoning the party on the charge. R. v. W ilkes, 2 Wils. at p. 
 159. The Court will not increase the amount of the bail after it 
 has once been taken. R. v. Baiter, 2 Chits. Rep. 109. 
 
 In delivering the judgment of the Privy Council in United 
 States v. Gaynor, (1905) 9 C. C. C. 205, the Lord Chancellor, at 
 p. 231, says: "Their Lordships do not mean to suggest that the 
 writ of habeas corpus is not applicable when there is a prelimin- 
 ary proceeding. Each case must depend upon its own merits. 
 But, where a prisoner is brought before a competent tribunal and 
 is charged with an extradition offence and remanded for the 
 express purpose of affording the prosecution the opportunity of 
 bringing forward the evidence by which that accusation is to be 
 supported, if, in such a case, upon a writ of habeas corpus a 
 learned Judge treats the remand as a nullity and proceeds to ad- 
 judicate upon the case as though the whole evidence were before 
 him, it would paralyze the administration of justice and render it 
 impossible for the proceedings in extradition to be effective." 
 
 It is not essential in Quebec that a writ of habeas corpus under 
 sec. 16 of the Extradition Act should be returnable in Court, and 
 it is sufficient that the writ is returnable before a Judge sitting 
 in Chambers, if the latter practice is authorized under the general
 
 468 PRACTICE IN RETURNING WRIT AMENDING THE RETURN. 
 
 law in force in the Province. Re Oaynor and Greene (No. 8), 
 9 C. C. C. 496. 
 
 If the return to a writ of habeas corpus shews a proper war- 
 / rant, or other legal cause for detention, although dated subsequent 
 to the writ to which the return is made, the prisoner must he re- 
 manded to custody. R. v. Walton, (1905) 10 C. C. C. 269. 
 
 The proper practice in the return of a writ of habeas corpus 
 appears to be to bring it into Court and read the return, where- 
 upon, and not before, it is to be filed by the proper officer. Re 
 Reno and Anderson, 4 P. E. 281, at 29.1; Re Murphy, (1894) 2 C. 
 C. C. 562. 
 
 The person to whom a writ of habeas corpus is directed must 
 return the original warrant of commitment and not a copy. In 
 Re Carmichael, 10 U. C. L. J. 325. The decision in Re Ross, 3 
 P. R. 301, to the contrary was there disapproved. 
 
 But in R. v. Skinner, 9 C. C. C. 558, a Nova Scotia case, Re 
 Ross, supra, was followed. , 
 
 On the return of a writ of habeas corpus in an extradition pro- 
 ceeding the Judge has no power to review the decision of the extra- 
 dition commissioner on the ground that it is against the weight 
 of evidence. Ex parte Leitz (No. 1), (1899) 3 C. C. C. 54. 
 
 Amending Return. 
 
 The Court has power to permit the return of the writ to be 
 amended and to allow it to be taken off the files in order that 
 the amendment may be made. Leonard Watson's Case, 9 A. & E. 
 731 ; R. v. Reno and Anderson, 4 P. R. 281 ; MEREDITH, C. J., at p. 
 567, in Re Murphy, supra. This amendment may be made without 
 the consent of the prisoner. Re Clarke, 6 Jur. 757, and see Re 
 Royston, (1909) 15 C. C. C. 96, and Re Leblanc, 22 C. C. C. 208. 
 
 Where it appears on the return of a certiorari that the con- 
 victed person is in close custody, the Court may order a habeas 
 corpus, and hear together the motion to quash the conviction, and 
 the motion for the prisoner's discharge. R. v. Spooner, (1900) 4 
 C. C. C. 209. 
 
 Where the magistrate is directed by an order to return the 
 proceedings relating to the imprisonment, and returns on sucn 
 order the information, depositions and conviction, such conviction 
 is not by reason thereof brought under the jurisdiction of the 
 Superior Court for the purpose of a motion to quash the same. 
 R. v. MacDondld (No. 2), (1902) 5 C. C. C. 279.
 
 AMENDING THE RETURN. 469 
 
 Until the conviction is brought into the Court by a return to 
 a writ of certiorari under the hand and seal and the judicial officer 
 to whom it is directed requiring it to be so certified, the Court 
 has no power to quash it. It is the return in due form which gives 
 the necessary jurisdiction to revise the conviction. MEAGHER, J., 
 at p. 299, ibid. 
 
 On this point, however, see E. v. Ames, 10 C. C. C. 52, and 
 other cases noted on page 497, post. 
 
 The decision of a County Court or Court of General Sessions 
 on appeal from a summary conviction is final and conclusive, and 
 a superior Court has no jurisdiction to interfere by habeas corpus. 
 R. v. Beamish, (1901) 5 C. C. C. 388. 
 
 On habeas corpus proceedings all the facts can be brought be- 
 fore the Judge that may become necessary or important for him to 
 know so as to enable him to come to a determination as to the 
 legality of the imprisonment. HANNINGTON, J., at p. 194, in Ex 
 parte Fitzpatrick, (1893) 5 C. C. C. 191. 
 
 Where the conviction only was lodged with the gaoler, and 
 no warrant of commitment, upon habeas corpus the Judge may 
 properly allow the further detention of the prisoner for a limited 
 time until a warrant in due form can be obtained from the com- 
 mitting magistrate. E. v. Morgan, (1901) 5 C. C. C. 63; affirmed 
 on appeal, 5 C. C. C. 272. See, also, R. v. Mitchell, 19 C. C. C. 113. 
 
 Where a return to an order in the nature of a writ of habeas 
 corpus specifies two warrants of commitment for the same offence 
 and there is nothing in either the second warrant, or in the return, 
 shewing that the second warrant was issued in substitution for the 
 first, or that the justice intended to amend the first warrant, which 
 was irregular and bad, the return was held to be bad and the pri- 
 soner discharged. E. v. Venol, (1903) 6 C. C. C. 209. 
 
 " I think more care should be taken in making a return to an 
 order in the nature of a habeas corpus, and, in a case like this, it 
 should have been carefully prepared by a solicitor." RITCHIE, J., 
 at p. 212, ibid. 
 
 A return by the sheriff disclosed two warrants setting out the 
 conviction and sentence, and the affirmation thereof by the Court 
 of error, is a good and sufficient return. If actually written by 
 him or under his direction the return need not be signed by the 
 sheriff. In re Sproule, 12 S. C. R. 140.
 
 470 HABEAS CORPUS IN EXTRADITION CASES. 
 
 Extradition, Inquiry as to Evidence. 
 
 On motion for habeas corpus, or for the discharge of the pri- 
 soner held for extradition, the Court applied to cannot receive or 
 consider any evidence except that upon which the prisoner stands 
 committed. 
 
 Neither can the Court inquire into the weight of evidence or 
 its sufficiency to sustain the charge. Re Cohen, (1904) 8 C. C. C. 
 251; and see In re Parker, (1890) 19 0. K. 612; Re Gates, (1904) 
 8 C. C. C. 249; R. v. Governor Holloway Prison, (1902) 71 L. J. 
 K. B. 935; Ex parte Huguet, (1893) 29 L. T. 41; Re Arton, 
 [1896] 1 Q. B. 509. But see Re McTier, 17 C. C. C. 80. 
 
 Where a person has been arrested illegally he cannot, while 
 still under such illegal arrest, be legally held on a valid warrant. 
 Before a prisoner can be legally arrested on a new charge, the 
 first arrest being illegal, he must first be liberated. 
 
 While habeas corpus proceedings are pending a warrant of ar- 
 rest cannot be served upon a prisoner, such prisoner being deemed 
 to be under the protection of the Court charged with the habeas 
 corpus proceedings. Ex parte Cohen, (1902) 8 C. C. C. 312. 
 
 It has since been expressly held to the contrary. Re Webber, 
 19 C. C. C. 515. 
 
 An arrest in Canada for extradition cannot legally be made 
 upon a mere telegraphic or other request, from the authorities of 
 a foreign country, without a warrant issued in Canada. Re Dickey 
 (No. 1), (1904) 8 C. C. C. 318. 
 
 But a warrant will be good if based on an information sworn 
 on belief in the telegram. Re Webber supra. 
 
 Where a person has been committed for extradition the Court 
 on habeas corpus proceedings may revise the commissioner's deci- 
 sion on the question of whether or not there -was legal and com- 
 petent evidence tending to prove the commission of the crime, 
 but it will not review the commissioner's decision as to the suffi- 
 ciency of the evidence to justify the committal. Ex parte Fein- 
 berg, (1901) 4 C. C. C. 270; Re Darracq., 19 C. C. C. 483; Re 
 O'Netil, 19 C. C. C, 410. See also U. 8. v. Webber (No. 1), 20 
 C. C. C. 1; U. S. v. Webber (No. 2), II. 6. 
 
 An information leading to the issue of a warrant of arrest 
 in extradition is insufficient if made upon information and belief 
 only, without disclosing the facts upon which the informant's be- 
 lief is founded. Re Dickey (No. 2), (1904) 8 C. C. C. 321.
 
 HABEAS CORPUS NOT AN APPEAL. 471 
 
 Unless evidence taken before the extradition commissioner of 
 an alleged confession by the accused is clearly inadmissible, a Judge 
 hearing a motion for habeas corpus should not discharge the pri- 
 soner upon the ground of the inadmissibility of such evidence. Re 
 Lewis, (1904) 9 C. 0. C. 233. 
 
 DISCHARGE WITHOUT ACTUAL ISSUE OP WRIT. 
 
 A rule to quash a conviction may in the first instance be to 
 shew cause why a writ of habeas corpus should not issue "and 
 why, in the event of the rule being made absolute, the prisoner 
 should not be discharged out of custody without the issuing of the 
 said writ and without his being brought before the Court." The 
 rule may at the same time ask for a writ of certiorari as well as of 
 habeas corpus. R. v. Collins, 5 M. K. 136. The Statute 29 and 
 30 Viet., ch. 45 (Canada), had in view and recognized the right 
 of every man committed on a criminal charge to have the opinion 
 of a Judge of a Superior Court upon the cause of his commitment 
 by an inferior jurisdiction. R. v. Hosier, 4 P. E. 64. 
 
 Habeas Corpus is not an Appeal. 
 
 The Judge acting under a writ of habeas corpus examines 
 whether the committing magistrate has jurisdiction, whether the 
 committal is legal and whether any crime known to the law is 
 alleged to have been committed, but he is not called upon to 
 determine whether the committing magistrate's decision is in 
 accordance with the evidence, or is proper or improper on the 
 merits of the case. The proceeding is not an appeal against the 
 magistrate's decision, but is an investigation as to whether he has 
 power or jurisdiction to act, whether the commitment is legal and 
 whether any offence known to the law is charged, and if the magis- 
 trate had the necessary power or jurisdiction its exercise will not 
 be inquired into. WURTELE, J., at p. 561, in R. v. Gillespie, (1898) 
 1 C. C. C. 551. 
 
 Decisions of County Judges' Criminal Court. 
 
 The County Judges' Criminal Court is not an inferior Court 
 and its decisions and proceedings are not subject to review on 
 habeas corpus. R. v. Burlce, (1898) 1 C. Cl C. 539, and see R. 
 v. Kavanagh, (1902) 5 C. C. 0. 507. 
 
 "If any proposition is conclusively established by authorities 
 having the support of the soundest reasons, it is, that after a con-
 
 472 DECISIONS OF COUNTY JUDGES' CRIMINAL COURT. 
 
 viction for felony by a Court having general jurisdiction of the 
 offence charged, a habeas corpus is an inappropriate remedy; the 
 proper course to he adopted in such a case being, viz., a writ of 
 error." STRONG, J., at p. 204, in Re Sproule, 12 S. C. B. 140. 
 
 In R. v. Murray, (1897) 1 C. 0. 0. 452, the Ontario Court of 
 Appeal held that the County Judge's Criminal Court was a Court 
 of Becord and, after a conviction by such a Court having general 
 jurisdiction over the offence charged, the proceedings are review- 
 able only under a writ of error and cannot be the subject of investi- 
 gation under a writ of habeas corpus. And see R. v. St. Denis 
 (1875) 8 P. E. 16; R. v. Goodman, (1883) 2 0. E, 468. 
 
 A Court of one province has no jurisdiction to direct an in- 
 quiry before a justice or a Judge of another province. R. v. 
 Defrivs, (1894) 1 C. C. C. 207, 25 0. B,. 645. 
 
 Where the warrant of arrest exhibited in the return to a habeas 
 corpus shews on its face the magistrate's jurisdiction, affidavits 
 are not admissible to controvert this fact if the offence charged was 
 a criminal one. Ibid. But see R. v. Cavelier, 1 C. C. C. 134, where 
 affidavits were received to shew that the commitment took place 
 on a Sunday. 
 
 Habeas Corpus on Magistrate's Decision. 
 
 A police magistrate trying a prisoner with his own consent 
 under sec. 777 of the Code is not a " Court of Becord " within the 
 meaning of the Ontario Habeas Corpus Act, and habeas corpus 
 will lie to quash a commitment made by such a magistrate. R. v. 
 Gibson, (1898) 2 C. C. C. 302, and see R. v. St. Clair, (1909) 3 
 C. O. C. 551, 27 A. E. 308, and R. v. Johnson, 19 C. C. C. 203, 
 also R. v. Leschinski, 17 C. C. C. 199. But see R. v. McEwen, 
 (1908) 13 C. C. C. 346, where it was held by CAMERON, J., that 
 habeas corpus would not lie in such a case in Manitoba. 
 
 The Court has jurisdiction upon habeas corpus to examine into 
 the legality of a commitment for trial made by a justice upon a 
 criminal charge and, in a proper case, to order the discharge of 
 the accused. R. v. Weiss, 21 C. C. C. 438. 
 
 Prisoner's Discharge on Habeas Corpus. 
 
 The Court, as a condition precedent to a prisoner's discharge 
 on habeas corpus proceedings, imposed the terms that he should 
 undertake that no action shall be brought at law against any 
 person in respect of the proceedings taken against him which
 
 DISCHAEGE OF PRISONER ON HABEAS CORPUS. 473 
 
 ;w 
 
 resulted in the conviction and his imprisonment thereunder. 
 R. v. Horton, (1897) 3 C. 0. C. 84, and see Ex parte Hill, 3 C. 
 & P. 225. 
 
 Where a prisoner is discharged upon habeas corpus merely by 
 reason of a defect in the commitment., or for lack of jurisdiction 
 in the committing magistrate, such discharge is not a bar to the 
 prisoner's re-arrest and trial before a competent jurisdiction in re- 
 spect of the same charge. R. v. Weiss, supra. 
 
 After citing Attorney-General for Hong Kong v. Kwolc, A. 
 Sing., L. E. 5 P. 0. App. 201, WURTELE, J., in Ex parte Seitz, 
 (1899) 3 C. C. C. 127, at page 131, proceeds: "The rule, there- 
 fore, is that, when a prisoner has been discharged upon the merits 
 of the charge laid against him, when the conviction or order of 
 detention founded on the charge is set aside as unfounded in law, 
 the prisoner thus discharged cannot be lawfully arrested and im- 
 prisoned again for the same offence upon the same state of facts, 
 but that, when the prisoner is discharged merely by reason of a 
 defect in the commitment, or in consequence of the want or excess 
 of jurisdiction in the committing Court, or in the committing 
 magistrate, he can be again arrested and tried for the same cause 
 before a competent Court, or a competent magistrate." 
 
 The Court cannot on a writ of habeas corpus revise on its 
 merits the decision of the Judge who has made the conviction, or 
 adjudge on the culpability of the petitioner. R. v. Bougie, (1899) 
 3 C. .0. C. 487. 
 
 Where there has been a commitment under an extradition war- 
 rant, the Court, on habeas corpus proceedings, is not justified in 
 referring to the depositions returned and inferring therefrom facts 
 material to the offence if the warrant of commitment is in itself 
 defective in omitting to recite a finding of such fact. Re Murphy, 
 2 C. C. C. 562. 
 
 A person who is charged under a wrong name and who pleads 
 without objecting to the same is not entitled, after conviction, to 
 be released upon habeas corpus on the ground that she is not 
 the person designated in the commitment. Ex parte Corrigan, 
 (1899) 2 C. C. C. 591. 
 
 The discharge of the prisoner from custody on habeas corpus 
 does not amount to a quashing of the conviction. Hunter v. Gil- 
 l-ison, 7 0. E. 735. 
 
 As to costs when prisoner discharged on habeas corpus in Nova 
 Scotia, see In re Murphy, 28 N". S. E. 196.
 
 474 APPLICATIONS TO SUCCESSIVE JUDGES. 
 
 In discharging a prisoner under habeas corpus proceedings 
 under ch. 181, B. S. Nova Scotia, an order for protection in re- 
 spect of a civil action byt the prisoner can be made only in favour 
 of the gaoler and not in favour of the magistrate and prosecutor. 
 R. v. Keeping, (1901) 4 O. C. C. 494. 
 
 An order of a Judge made under Con. Stat., cap. 45, N. B., 
 discharging a prisoner from custody, cannot be set aside or re- 
 vised by the Court. Ex parte Byrne, 22 1ST. B. E. 427. 
 
 The erroneous decision of a magistrate as to whether a default- 
 ing witness was bound to attend his Court without prepayment of 
 witness fees, and as to the liability of the witness to arrest, is not 
 open to review upon habeas corpus. R. v. Clements, (1901) 4 C. 
 C. C. 553. 
 
 An unreasonable delay in issuing a warrant of commitment 
 may be a ground for discharge on habeas corpus if the delay works 
 an injustice to the defendant. Ex parte Doherty, (1899) 5 C. 
 C. C. 94. 
 
 Applications to Successive Judges. 
 
 Where an application is made for the discharge of a prisoner 
 on habeas corpus and is refused, another application may be made 
 for the same purpose to another Judge in Chambers, and this 
 latter Judge may discharge the prisoner notwithstanding the 
 refusal of the first Judge applied to. R. v. Carter et al., (1902) 
 5 C. C. C. 401, and see R. v. Heckman, (1902) 5 C. 0. C. 242, 
 and Re Piaget, 21 O. L. T. Occ. N. 536; Re Bowack, (1892) 2 B. 
 C. E. 222. This is the practice that prevails still in England and 
 in all the provinces of Canada except in Ontario and Quebec, 
 where provisions are made for appeals from judgments refusing to 
 discharge the applicant from habeas corpus. But there is no ap- 
 peal from an order discharging a prisoner under habeas corpus. 
 Cox & Hakes, (1890) 15 A. C. 506. 
 
 In Ontario a person is limited to the writ of habeas corpus to 
 be granted by any Judge of the High Court returnable before 
 himself, or another Judge in Chambers, or before a Divisional 
 Court, with a right of appeal. Re Harper, 23 0. E. 63. 
 
 An appeal in Ontario lies direct to the Court of Appeal and 
 not to a Divisional Court, from the order of a single Judge re- 
 manding a person to custody upon a return to a habeas corpus 
 issued under B. S. 0., c. 83. Re Harper, supra. 
 
 See p. 479 further as to appeals.
 
 FUGITIVE OFFENDERS BAIL IN EXTRADITION CASES. 475 
 
 Fugitive Offenders. 
 
 Extradition from Canada to another British possession will not 
 be confirmed on habeas corpus unless a prima facie case of guilt 
 is made out to the satisfaction of the Superior Court to which the 
 accused makes application for his discharge, irrespective of the 
 decision of the committing magistrate. The power under sec. 10 
 of the Fugitive Offenders' lAct is practically unlimited, and the 
 Court on habeas corpus may, in the exercise of its discretion, order 
 a discharge for any reason which appears to it to be satisfactory. 
 The Court has power to review the evidence upon which the com- 
 mitment for intercolonial extradition is founded. R. v. Delisle, 
 (1896) 5 0. C. 0. 210. 
 
 See also R. v. Wishart, 18 C. C. C. 146. 
 
 Bail in Extradition Proceedings. 
 
 Under ordinary circumstances bail should not be granted to a 
 person committed for extradition. Where bail was granted pend- 
 ing an application for habeas corpus and afterwards the applica- 
 tion for habeas corpus was refused, the accused must surrender 
 himself into close custody before an application on his behalf for 
 an order to admit him to bail pending an appeal will be enter- 
 tained. Re Watts, (1902) 5 O. 0. C. 538, and see Re Stern, 
 (1903) 7 0. C. C. 191; United States v. Weiss, (1904) 8 C. C. 
 C. 62. 
 
 A Judge of a Superior Court may grant bail after commitment 
 by an Extradition Commissioner, but this power should not be 
 exercised except under exceptional circumstances such as the life 
 of the fugitive being endangered by his close confinement. R. v. 
 Gaynor & Greene (No. 9), (1905) 9 C. C. C. 542. 
 
 No Costs by Stranger to Proceedings. 
 
 A person who has been made a respondent on an application 
 for habeas corpus in a criminal matter, and who does not appear 
 on the record as being the prosecutor, and who did not appear 
 on the application, was held in Nova Scotia as not liable for the 
 costs of the application on the discharge of the prisoner, although 
 the conviction appealed against was for stealing his property. 
 R. v. Bowers, (1900) 6 C. C. C. 100.
 
 476 JURISDICTION IN QUEBEC AND GENERALLY. 
 
 Jurisdiction in Quebec. 
 
 In Quebec the Judges of the Superior Court of the district or 
 division where a person is imprisoned have jurisdiction in habeas 
 corpus proceedings, and can entertain a petition for the same. 
 Ex parte Goldsberry, (1905) 10 C. C. C. 392, and see Ex parte 
 Trerriblay, post. 
 
 The Court of King's Bench sitting in Appeal either at Mont- 
 real or Quebec has jurisdiction to grant a writ of habeas corpus 
 on the application of a prisoner confined in any district within 
 the division for which the appeal sittings are being held. A 
 Superior Court Judge, sitting outside the limits of the judicial dis- 
 trict in which a prisoner is confined, has no jurisdiction in habeas 
 corpus proceedings when there is a Judge duly authorized within 
 such district. Ex parte Tremblay, (1902) 6 C. C. C. 147. 
 
 In Quebec when the issue of a writ of habeas corpus has been 
 refused, the application cannot be renewed before the Judge who 
 refused it or before any other Judge, unless new facts are stated ; 
 but application may be made anew to the Court of King's Bench 
 on its appeal side, at Montreal or Quebec, according as the dis- 
 trict where the appellant is confined is situated in the division 
 for which the Court sits in one or the other of those cities. The 
 Court of King's Bench on its appeal side has original jurisdiction 
 in matters of habeas corpus with respect to any person confined 
 in a district included in the one or the other of its two districts. 
 Per AVuRTELE, J., in the same case at pp. 148, 149. 
 
 Jurisdiction Generally. 
 
 Where a magistrate, having no jurisdiction other than to hold 
 a preliminary inquiry, and commit the accused for trial, tried and 
 convicted the accused and committed him to gaol, on habeas cor- 
 pus proceedings for the release of the prisoner, an application on 
 behalf of the Crown for an order detaining the prisoner under sec. 
 1120 of the Code, for appearance on a preliminary inquiry, was 
 refused. R. v. Blucher, (1903) 7 C. C. C. 278. 
 
 A commitment by a tribunal of inferior jurisdiction may be 
 severable where imprisonment is ordered for a term and a further 
 term in default of payment of a fine and costs : the prisoner is not 
 entitled to his release on habeas corpus during the first term be- 
 cause of the costs not 'being ascertained in the commitment, but
 
 DEFECTIVE WARRANTS OF CONVICTION. 477 
 
 leave will be reserved to him to re-apply at the expiration of the 
 first term. R. v. Carlisle, (1903) 7 C. O. C. 470, and see R. v, 
 Fraser, 20 0. C. C. 167. 
 
 If a warrant of commitment returned, on an application for 
 habeas corpus, as the cause of detention, is bad on its face in not 
 alleging a conviction, the conviction cannot be received' or referred 
 to in order to support the warrant. " Had the warrant alleged 
 that there had been a conviction it may be that the conviction 
 could have been referred to in order to support it, even though 
 the offence were insufficiently stated in the warrant; but, as it 
 contains no such allegation, I must hold, in the absence of any 
 authority to the contrary, that the conviction cannot be referred 
 to." SCOTT, J., in R. v. Ldlonde, (1895) 9 C 1 . C. t O. 501, 
 
 By sec. 1121 of the Code it is provided that " No warrant of 
 commitment shall be held void byi reason of any defect therein, 
 provided it is therein alleged that the defendant has been con- 
 victed and there is a good and valid conviction to sustain the 
 same." 
 
 When a person had been arrested on a warrant of commitment 
 and requested the officer to allow him to spend Easter Sunday at 
 home and the officer complied with his request, trusting to the 
 prisoner surrendering himself under the warrant, and the prisoner 
 was re-arrested later on by the constable on the same warrant; on 
 a motion for habeas corpus it was held that the facts disclosed 
 upon affidavit shewed that the escape at most was negligence on 
 the part of the officer, and that he did not contemplate a voluntary 
 abandonment of his prisoner, but negligently trusted to his pro- 
 mise to surrender and the re-arrest was upheld and the applica- 
 tion for the prisoner's discharge was dismissed. R. v. O'Hearon, 
 5 C. C. C. 531. 
 
 A Court of one province has no power on habeas corpus, or in 
 any other proceedings, to enquire into the validity or regularity 
 of any of the proceedings connected with the trial of an accused 
 person by the Court of another province. R. v. Wright, (1905) 
 10 0. 0. C. 461. Ex parte Stather, 25 N. B. R. 374, to the con- 
 trary effect, not followed. See also Re Seeley, 14 C. C. C. 270, 41 
 S. C. R. 5, referred to at page 89 ante. 
 
 If the certificate of sentence to the penitentiaryi is irregular 
 for omitting the date of sentence, leave may be given on habeas 
 corpus to return an amended certificate correcting the omission. 
 R. v. Wright, supra.
 
 478 HABEAS CORPUS IN EXTRADITION CASES. 
 
 Where concurrent proceedings are taken by certiorari and 
 habeas corpus, and the writ of habeas corpus is maintained upon 
 an objection appearing on the face of the commitment, the order 
 for costs against the prosecutor should not include the costs in- 
 curred upon the certiorari, R. v. Cote, (1903) 8 C. C. C. 393. 
 
 The right to habeas corpus in criminal matters does not depend 
 -upon the legality or illegality of the original caption, but upon 
 the legality or illegality of the present detention. R, v. Whiteside, 
 ,(1904) 8 C. C. C. 478. 
 
 Where a prisoner was arrested in the county of Ontario on a 
 warrant issued in and directed to the peace officers of the county 
 of Durham (Ont.) and the warrant had not been backed or 
 endorsed by a J. P. in the county of Ontario, this irregular arrest 
 is not a ground for the prisoner being released on habeas corpus. 
 Ibid. 
 
 The petition for a writ of habeas corpus may be refused if 
 the Court is satisfied that the writ would, if issued 1 , be quashed 
 upon the petitioner's own shewing. United States v. Weiss, 
 
 (1904) 8 C. C. C. 62, and see 15 Am. & Eng. Encyc., 2nd ed., p. 
 140. 
 
 Extradition. 
 
 On a writ of habeas corpus issued before the committal of the 
 accused for extradition and before the conclusion of the inquiry 
 before the Commissioner, the powers of the Judge are limited to 
 determine whether the Commissioner has jurisdiction to make the 
 inquiry. Ex parte Green & Oaynor (No. 1), (1902) 7 C. C. C. 
 375. 
 
 When a prisoner is brought before an extradition Judge in 
 pursuance of a warrant of arrest and charged with an extraditable 
 offence, he may be remanded for the purpose of affording the pro- 
 secution an opportunity of adducing evidence. U. 8. v. Oaynor, 
 
 (1905) 9 C. C. C. 205. 
 
 In extradition, on a writ of habeas corpus, the Judge must see 
 in the first place whether the offence charged is or is not of a 
 political character, and whether the proceedings are regular and 
 justify the prisoner's committal for surrender. Re Levi, (1897) 
 1 C. C. C. 74. 
 
 In the case of a fugitive who has been convicted, the Judge 
 does not examine the evidence given at hie trial and must not
 
 APPEALS FROM ORDERS MADE ON HABEAS CORPUS. 479 
 
 revise the verdict of the jury ; his duty is to see if the offence is an 
 extradition crime, if the conviction after a regular trial has been 
 duly proved, and if the prisoner has been identified. Ibid. 
 
 See Re Stagg (No. 1), 20 0, C. O. 306, and Re Stagg (No. 2), 
 20 C. C. 0. 310, for illustrations of cases where extradition should 
 be refused for want of sufficient legal evidence. 
 
 It is only necessary that actual identity between the person 
 held and the person named in the warrant be established. Re 
 Garbutt, (1891) 21 0. K. 179, 472. 
 
 Appeals from Orders Relating to Habeas Corpus. 
 
 Where a person has been discharged from custody byi an order 
 of the High Court under a habeas corpus, the Court of Appeal 
 has no jurisdiction to entertain an appeal. Cox v. Hakes, (1890) 
 15 A. C. 506. This appeal was held by the House of Lords not to 
 be an appeal " in a criminal cause or matter " within sec. 47 of the 
 Judicature Act of 1893; but that no appeal lay to the Court of 
 Appeal under sec. 19 from an order discharging a prisoner under 
 a habeas corpus. So that it makes no difference whether the habeas 
 corpus had been issued respecting a criminal matter under the 
 Statute of Charles II, or under 56 Geo. Ill, c. 100. 
 
 Lord Herschell says, at p. 534 : "I am driven then to the con- 
 clusion that, where a person has been discharged by the High 
 Oourt under a writ of habeas corpus, the Court of Appeal has no 
 power effectually to interfere with the action of the Court below. 
 The judgment of the higher Court cannot in any wise affect the 
 discharge, or restore to custody the person liberated. It is in- 
 competent to give effect to its judgment and cannot undo that 
 which it holds to have been wrongly done by the order appealed 
 from." 
 
 And at page 522 the Lord Chancellor (Halsbury) concludes 
 his judgment by saying : " It is the right of personal freedom in 
 this country which is in debate, and I for one should be" very slow 
 to believe, except it was done by express legislation, that the policy 
 of centuries has been suddenly reversed, and that the right of 
 personal freedom is no longer to be determined summarily and 
 finally, but is to be subject to the delay and uncertainty of ordi- 
 nary litigation, so that the final determination upon that ques- 
 tion may only be arrived at by the last Oourt of Appeal." 
 
 Where the subject matter of the proceedings in respect of which 
 the application for habeas corpus was made is not criminal, ihe
 
 480 APPEALS FROM ORDERS IN HABEAS CORPUS CASES. 
 
 Court of Appeal has jurisdiction to entertain an appeal from an 
 order refusing to grant a habeas corpus. Ex parte Woodhall, 20 
 Q. B. D. 832, per Lord Esher, M.R., at p. 837. 
 
 As to appeals in British Columbia from an order of a Judge 
 cancelling an order of deportation under the Immigration Act, see 
 Re Hoesson Rahim, 19 C. C. O. 394, overruling ITcezoya v. 0. P. 
 R. Co., 12 B. C. R. 454. 
 
 As to appeals in Quebec see Ex parte Tremblay, supra. 
 
 There is no appeal in Manitoba from the decision of a single 
 Judge of the Court of King's Bench refusing a habeas corpus, but 
 successive applications for the writ may be made to each Judge. 
 R. v. Barre, (1905), 11 C. C. C. 1. 
 
 Whether a Judge can in Chambers rescind his own order for 
 a writ of habeas corpus, or quash the writ itself on the ground that 
 it issued improvidently, is doubtful. See Re Ross, 3 P. R. 301. 
 
 Where the discharge from custody of an applicant under 
 habeas corpus has been ordered by a tribunal of competent juris- 
 diction in Nova Scotia, that order is not revocable by way of appeal 
 or otherwise. Re E. G. Blair, 23 N. S. R. 225 ; Re McKenzie, 2 
 R. & G. N. S. R. 481. 
 
 One Writ in Ontario. 
 
 In Ontario a person confined or restrained of his liberty is now 
 limited to only one writ of habeas corpus to be granted by a Judge 
 of the High Court returnable before himself, or before a Divisional 
 Court or before a Judge in Chambers with a right of appeal to 
 the Court of Appeal, whose judgment is final; and where no such 
 appeal is taken the judgment which might have been appealed 
 against becomes final and conclusive, and may be pleaded as re.s 
 judicata. Taylor v. Scott, 30 0. R. 475; R. v. Miller (No. 2), 
 (1909) 15 C. C. C. 156. But see R. v. Teasdale, (1910) 16 C. 
 C. C. 53. As to costs in Ontario see Re Weatherall, 1 0. L. R. 542. 
 
 Detention of Person after Application for Habeas Corpus. 
 
 11 2O. Whenever any person in custody charged with an indictable 
 offence has taken proceedings before a Judge or Criminal Court having juris- 
 diction in the premises by way of certiorari, habeas corpus or otherwise 
 to have the legality of his imprisonment inquired into, such Judge or Court 
 may, with or without determining the question, make an order for the 
 further detention of the person accused, and direct the Judge or justice, 
 under whose warrant he is in custody or any other Judge or justice, to take 
 any proceedings, hear such evidence, or do such further act as in the 
 opinion of the Court or Judge may best further the ends of justice.
 
 CASES ILLUSTRATING HABEAS CORPUS LAW. 481 
 
 This section was amended in 1908, 7-8 Edw. VII, ch. 18, sec. 
 14, by inserting the words " or any other Judge or justice " after 
 the word " custody " in the 8th line thereof. 
 
 This section was applied in R. v. Frejd, 18 C. C. C. 110, where 
 the magistrate had tried and convicted the prisoner when he only 
 had power to commit for trial. 
 
 A FEW ILLUSTRATIVE CASES. 
 
 If the return shews a commitment bad on the face of it, the 
 Court will not, on the suggestion that the conviction is good, 
 adjourn the case for the purpose of having the conviction brought 
 up and amending the commitment by it. Nor will the Court look 
 at the conviction unless it is before them, having been brought up 
 by a certiorari. Ex parte Tinson, L. E. 5 Ex. 257, 39 L. J. M. C. 
 129. 
 
 A Judge who quashes a writ of habeas corpus on the ground 
 that the petitioner is in custody under a sentence legally pro- 
 nounced by a competent tribunal, has no power to direct such 
 tribunal to execute a part of the sentence (say whipping) which 
 had been suspended in connection with the issue of the writ. R. 
 v. Goldsberry, (1905) 11 C. C. C. 159. 
 
 An objection to the validity of a writ of habeas corpus on the 
 ground that it had not been signed by the Judge who ordered its 
 issue and is not marked " By virtue of ch. 95 of the Consolidated 
 Statutes for Lower Canada," as provided by s. 3 of the Habeas 
 Corpus Act, cannot be raised after the return of the writ and pro- 
 duction of the prisoner. United States v. Browne (No. 2), (1906) 
 11 C. C. C. 167. 
 
 Upon the return of the writ pending the hearing the prisoner 
 is detained under the writ and not under the authority of the 
 original warrant. R. v. Bethel, (1696) 5 Mod. 19. 
 
 After a return to a writ of habeas corpus and an order refus- 
 ing discharge thereunder, a second writ of habeas corpus may 
 afterwards be granted if the circumstances have altered, ex gr. 
 on the expiry of a term of imprisonment, which was current on the 
 first application. On the second motion to discharge no objection 
 should be considered which might have been taken upon the first 
 application. R. v. Robinson, (1907) 12 C. C. C. 447. 
 
 If a prisoner who obtains a writ of habeas corpus for his 
 release escapes before judgment on the application, the motion will 
 
 C.C.P. 31
 
 482 HABEAS CORPUS CASES ORDEB PROTECTING MAGISTRATE. 
 
 be dismissed. When the prisoner has been recaptured and sentenced 
 for the escape he may, upon being returned into custody on the 
 original charge, he granted a second habeas corpus. Re Bartels, 
 (1907) 13 C. C. C. 69. 
 
 When it appears that the applicant for the writ is properly in 
 custody under an entirely separate charge, his discharge should not 
 be ordered no matter what the defects in the proceedings attacked 
 may be. R. \, Hazehvood, 20 C. C. C. 488. 
 
 When the depositions returned with a certiorari in aid of a 
 habeas corpus disclosed no evidence whatever as to a material 
 fact essential to the offence, the case will not be remitted to the 
 justice to take evidence on the point omitted. R. v. Brisbois, 
 (1907) 13 C. C. C. 96, and see R. v. Simmons, (1908) 14 C. C. C. 
 5. But see R. v. Fuerst, 22 C. C. C. 183, where the prisoner was 
 remanded to be properly tried. 
 
 Under the Ontario Habeas Corpus Act the Court is bound, on 
 the return of a writ of habeas corpus, to examine the proceedings 
 anterior to the warrant and to discharge the prisoner if the pro- 
 ceedings do not authorize the detention. Ibid. And see R. v. 
 Hosier, (1867) 4 P. E. 64, 71; R. v. St. Glair, (1900) 27 A. B. 
 308, 3 C. C. C. 551, and R v. Broadfoot, 17 C. C. C. 71. 
 
 The Ontario Habeas Corpus Act, E. S. 0. 1914, ch. 84, sec. 6, 
 makes it necessary, where a certiorari in aid has been granted, to 
 consider the depositions and proceedings returned in order to 
 ascertain whether there is any evidence to sustain the conviction, 
 even where the conviction is in regular form. R. v. Farrell, 
 (1907) 12 C. C. C. 52(4. 
 
 Order Protecting Magistrates. 
 
 The provisions as to protecting magistrates, found in the Crim- 
 inal Code and in the Ontario Statute E. S. 0. 1914, ch. 89, sec. 8, 
 do not apply to habeas corpus where everything is left as it stands 
 when the prisoner is discharged. R. v. Lowery, (1907) 13 C. C. 
 C. 105, 107. 
 
 The provisions in the Criminal Code protecting magistrates 
 when a conviction is quashed are contained in sec. 1131 of the 
 Code as follows : 
 
 1131. If an application is made to quash a conviction, order or other 
 proceeding made or had by or before a justice or stipendiary magistrate, 
 on the ground that such justice or stipendiary has exceeded his jurisdiction, 
 the Court or Judge to which or whom the application is made may, as a 
 condition of quashing the conviction, order or other proceeding, if the Court
 
 ARREST ON TELEGRAM. 483 
 
 or Judge thinks fit so to do, provide that no action shall be brought against 
 the justice or stipendiary by or before whom such conviction, order or other 
 proceeding was made or had, or against any officer acting thereunder or 
 under any warrant issued to enforce any such conviction or order. 
 
 As decided in R. v. Lowery, supra, these provisions do not 
 apply when the prisoner has been discharged on habeas corpus. 
 
 When a party is entitled to relief by habeas corpus, ex debito 
 justitiae from illegal imprisonment, the Court has no power to 
 impose upon him the term that he shall not bring any, action 
 against the party from whose illegal act he has suffered as a condi- 
 tion of relief, but they often refuse the costs of the application 
 unless he consents to such terms. R. v. Downey, 7 Q. B. 281. 
 
 The condition imposed as a term of quashing a justice's order 
 under sec. 1131 is one which the applicant may accept or reject 
 on the delivery of the judgment, and, if it be rejected, the Court 
 may dismiss the application with costs, although it finds that the 
 justice exceeds his jurisdiction. R. v. Morningstar, (1906) 11 
 C. C. C. 15, and see R. v. Kehir, 11 C. C. C. 52, where protection 
 was given on an order quashing a search warrant. 
 
 An order discharging a prisoner on habeas corpus on the 
 ground that the conviction is invalid does not determine the 
 validity of the conviction for any purposes other than the habeas 
 corpus motion, and the conviction itself stands until quashed on 
 certiorari or otherwise formally reversed or vacated. RUSSELL and 
 DRYSDALE, JJ., in Johnston v. Robertson, (1908) 13 C. C. C. 452. 
 
 A warrant of commitment under the Ontario Liquor License 
 Act may, under the special powers conferred by sec. 105 of that 
 statute, be amended on the return of a habeas corpus by striking 
 out the direction to hold the prisoner for the costs of conveying 
 him to gaol, if such costs are not properly ascertained in the war- 
 rant. R. v. Degan, (1908) 14 C. C. C. 148; B. v. Graves (No. 1), 
 16 C. 0. C. 150. 
 
 Arrest on Telegram. 
 
 Where t!ie accused was arrested for an offence alleged to have 
 been committed in Montreal and a warrant of arrest had been 
 issued in Montreal, and the police at Halifax, where the arrest 
 took place, were notified by telegram of the issue of the warrant, 
 the accused is not entitled to be discharged on habeas corpus if 
 the original warrant in due form and duly endorsed is returned in 
 answer to the writ. R. v. Lee Chu, (1909) 14 C. C. C. 322.
 
 484 AMENDING WARRANT ACTING MAGISTRATE. 
 
 Where a habeas corpus has been granted without a certiorari 
 in aid, the Crown should be granted an adjournment of the motion 
 to discharge, pending a return to a certiorari granted to the Attor- 
 ney-General. R. v. Nelson, (1908) 15 C. C. C. 10, and see R. V. 
 MacDonald, (1910) 16 C. C. C. 121. 
 
 Where the warrant of commitment in execution returned to 
 a writ of habeas corpus states only a charge of the offence anil 
 not a conviction thereof, the prisoner should be discharged. Ibid. 
 
 Amending Warrant of Commitment. 
 
 In Ontario, on the return of a habeas corpus, leave may be 
 given the Crown to file an amended warrant of commitment in 
 place of the alleged defective commitment, and the prisoner may bo 
 remanded under the substituted commitment, if in due form, with- 
 out determining the objections taken to the first warrant. R. v. 
 MacDonald supra. 
 
 If excessive costs have been included in a warrant of commit- 
 ment for default in payment of a fine upon summary conviction, 
 the Court may on return of a habeas corpus amend the conviction 
 and commitment by reducing such costs to the proper amount and 
 may remand the prisoner. R. v. Morris; (1910) 16 C. C. C. 1. 
 
 Acting Magistrate. 
 
 A prisoner held on a summary conviction purporting to be 
 made by a deputy stipendiary acting at the request of the stipen- 
 diary, but having no power so to act unless the latter was absent 
 or incapacitated by illness, interest or otherwise, if in fact there 
 was no incapacity to prevent the stipendiary from acting, must be 
 discharged on habeas corpus. Ibid. 
 
 Where a summary conviction is made by justices within their 
 jurisdiction to make only if acting at the request of the police 
 magistrate, or in case of his absence or illness, the conviction 
 should shew upon its face the fact that the justices were so acting. 
 R. v. Ackers (No. 3), (1910) 16 C. C. C. 222. 
 
 Costs of Proceedings. 
 
 Where the officer or other person to whom a writ of habeas 
 corpus is directed has obeyed it by bringing up the body and 
 making his return, the Judge or Court may make an order for
 
 IHREGULAEITIES JURISDICTION IN N. B. AND N. S. 485 
 
 payment by the applicant of the expenses of such officer or person. 
 Dodd's Case, 2 De G. & J. 510, followed: Re Weatherall, 1 0. L. E. 
 542. 
 
 The costs of proceedings by habeas corpus were governed in 
 Ontario by sec. 119 of the Judicature Act, E. S. (1897), ch. 51, 
 and are therefore in the discretion of the Court or Judge. R. v. 
 Jones, [1894] 2 Q. B. 382, followed; Re Weatherell, 1 0. L. E. 5&2. 
 
 Irregularity. 
 
 On a motion for habeas corpus the preliminary objections were 
 taken under the Nova Scotia Crown Eules 15, 163, 17, 352, 348 
 and 463, that the affidavit proposed to be read in support of the 
 prisoner's discharge had not been served upon the interested party, 
 that the affidavits filed were not endorsed with a memorandum 
 stating on whose behalf they were filed, and that the affidavits had 
 been interlined and corrections had been made therein which had 
 not been initialed and rewritten in the margin by the Commissioner. 
 Held, that these Eules governed and the irregularities should not 
 be condoned, that the applicant must pay the costs of the appli- 
 cation, but should have leave to renew his motion. In re Hayes, 
 21 C. L. T. Occ. N. 87. 
 
 Jurisdiction in New Brunswick. 
 
 In New Brunswick a Judge of a County Court has no jurisdic- 
 tion to grant an order under the Habeas Corpus Act (Con. Stat. 
 ch. 41), unless the person applying is confined within the Judge's 
 county. R. v. Wilson, Ex parte Irving, 35 N. B. E. 461. 
 
 Jurisdiction in Nova Scotia. 
 
 In Nova Scotia the County Court has no jurisdiction to issue 
 a writ of habeas corpus. But it has concurrent jurisdiction with 
 the Supreme Court under the Liberty of the Subject Act. Re 
 Edwin G. Harris, 26 N. S. E. 508. See, also, R. v. Woodworth, 21 
 C. C. C. 187 and Re Crouse (No. 1), 21 C. C. C. 231. 
 
 It is within a Judge's discretion to award costs against the 
 prosecutor on the discharge of an applicant on habeas corpus, but 
 the power should be exercised only in extreme cases, if at all. In 
 Re Murphy, 28 N. S. E. 196.
 
 486 JURISDICTION IN ALBERTA AND SASKATCHEWAN. 
 
 Alberta and Saskatchewan. 
 
 Where the defendant has been arrested in Alberta upon a war- 
 rant issued in Saskatchewan and endorsed by a magistrate in 
 Alberta, on habeas corpus proceedings it was held that the Court 
 has a right to inquire if the magistrate had a right to issue the 
 process a.nd if the proceedings before the magistrate were an 
 abuse of the process of the magistrate's Court as being frivolous or 
 vexatious, and if such a state of facts is found then the Judge may 
 discharge the prisoner. R. v. Galloway, (1909) 15 C. C. C. 317, 
 11 W. L. R. 673. 
 
 "A Judge of a Superior Court of any province of the Dominion 
 has jurisdiction to prevent the removal of an accused person from 
 that province to another upon an information laid by a private 
 individual before a justice of the peace in the latter province, if it 
 is made to appear that the proceedings before the justice are 
 frivolous, or vexatious, or mala fide, or otherwise are an abuse of 
 the process of the justices' Court." BECK, J., at p. 320, Ibid.
 
 WRIT OF CERTIORARI, WHEN ISSUED. 487 
 
 CHAPTER XIII. 
 
 CERTIORARI. 
 
 The certiorari is a writ issuing out of the Crown office in the 
 name of the King or Queen regnant and tested by the Chief Jus- 
 tice, which the Court of King's Bench, by virtue of its superintend- 
 ing authority over all Courts of inferior criminal jurisdiction in 
 the Kingdom, directs to the Judges or officers of those Courts, 
 or to justices at sessions or out of sessions, commanding them 
 to certify or return the records or proceedings in a judicial matter 
 depending before them to the end that the party may have the 
 more sure and speedy justice before the King or such justice as he 
 shall assign to determine the same. I Bac. Ab. Certiorari, Com. 
 Dig. Certiorari. 
 
 It is an undoubted prerogative of the Crown to see that all 
 inferior jurisdictions are kept within their proper bounds and ou 
 that principle the whole doctrine of certiorari proceeds. R. v. 
 Berkley, 1 Ken. 81, 103. The writ lies in all judicial proceedings 
 of inferior Courts. Therefore the Court of King's Bench has by 
 the common law in general a right to bring before it all records of 
 such Courts in order to rectify wrong ones if rectifiable, and if not 
 to quash them. Ibid. 
 
 It is agreed that the Court of King's Bench, having a general 
 superintendency over all Courts of inferior jurisdiction, may 
 award a certiorari to remove the proceedings from any of them, 
 except some particular statute or charter invests them with abso- 
 lute jurisdiction. R. v. Gillyard, 12 Q. B. 527. 
 
 The general principles governing the issue and use of the writ 
 of certiorari may be shortly stated as follows: 
 
 It is an original writ issued out of a superior Court directed 
 to the Judges of an inferior Court commanding the return to the 
 superior Court of all the records, papers and documents relating 
 to or concerning the judgment, order or conviction, so that the 
 proceedings had and taken in the inferior Court respecting the 
 same may be fully inquired into and an ascertainment had as to 
 whether justice has been done in accordance with the law governing 
 the judicial disposition of the case. It is judicial acts that will 
 be investigated and not those of a ministerial nature. The writ
 
 488 PRINCIPLES GOVERNING ISSUE OF CERTIORARI. 
 
 always lies unless it is taken away by express statutory enactment, 
 and even in this event it will be issued where it is shewn upon 
 affidavits that there has been an excess or want of jurisdiction 
 or a wrongful exercise of judicial power. It is frequently enacted 
 that, where an appeal may be taken under the provisions of the 
 governing statute, certiorari will not lie, but then express pro- 
 visions are overridden where a question of jurisdiction is involved. 
 The granting or refusing of the writ is entirely in the discretion 
 of the Court or Judge applied to. The writ is issued as a matter 
 of right upon the application of the Crown. Notice of the appli- 
 cation must be given to the magistrate and a verified copy of the 
 conviction or order appealed against produced on the motion, and 
 the applicant must enter into a recognizance. 
 
 As to circumstances in which the Court will exercise its dis- 
 cretion by refusing the certiorari, see Ex parte Seriesky, 21 C. C. 
 C. 140. 
 
 The use of a certiorari is for the superior Court the better to 
 consider and determine the validity of convictions, orders, appeals, 
 proceedings or indictments, presentments and other judicial pro- 
 ceedings, and to prevent an unfair or insufficient trial or judg- 
 ment or the execution of a wrongful judgment which it is thought 
 would take place in the original jurisdiction. 2 Hale 210. 
 
 The proceeding by certiorari differs from a right of appeal in 
 this that it always lies, unless it is taken away by express words. 
 While an appeal never lies unless it is expressly given by statute. 
 R. v. GUlyard, 12 Q. B. 527; R. v. Hanson, 4 B. & Aid. 521. 
 
 A certiorari, being a beneficial writ for the subject, cannot be 
 taken away without express words. If, therefore, a statute, auth- 
 orizing a summary conviction before a magistrate, gives an appeal 
 to the sessions who are directed to hear and finally determine the 
 matter, it does not take away the certiorari even after such appeal 
 is made and determined. R. v. Jukes, 8 T. E. 536 ; R. v. Hube, 5 
 T. B. 542. 
 
 Certiorari may be taken away by statute although no appeal is 
 given to the sessions. JR. v. JJ. St. Allans, 5 D. & E. 538; 3 
 B. & C. 698. Or although an appeal is given to the sessions and 
 they make an order subject to a case. R. v. JJ. Middlesex, 8 D. & 
 E. 117. 
 
 And generally, when thus taken away, the Court will not dir- 
 ectlyi or indirectly in any manner enable a defendant to remove 
 proceedings before it. R. \. JJ. Yorkshire, 1 A. & E. 563.
 
 WHEN CERTIORARI TAKEN AWAY BY STATUTE. 489 
 
 General words in an Act taking away the certiorari will not 
 bind the Crown, unless such an intention is to be gathered from 
 the other parts of the Act. R. v. Allan, 15 East. 333, 342; R. v. 
 Dames, 5 T. E. 626. 
 
 And in all cases the Attorney-General may have a certiorari 
 on behalf of the defendants. R. v. Battoms, 1 East, at 303. 
 
 It is of general benefit that the privilege enjoyed by the Attor- 
 ney-General should exist, as he can and has assisted defendants in 
 several instances where a doubtful judgment has been given beloAv 
 to have their cases reconsidered by applying for certiorari on the 
 part of the Crown. R. v. Allen, 15 East 333. 
 
 An enactment taking away the writ of certiorari in respect of 
 orders and convictions made under it, does not extend to an order 
 or conviction made entirely without jurisdiction, though pretended 
 to be made under the Act. R. v. Bolton, 1 Q. B. 66; R. v. JJ. 
 St. Allans,- 22 L. J. M. C. 142; R. v. Wood, 5 E. & B. 49; R. v. 
 Hoggard, (1870) 30 TJ. C. R. 152; Hespeler v. Shaw, (1858) 16 
 U. C. R. 104; R. v. Davis, 23 C. C. C. 33. 
 
 Where by a clause in a statute it is provided that no summary 
 conviction under it shall be removed by certiorari and upon the 
 face of a conviction it may be that the justices have no jurisdic- 
 tion, or that having jurisdiction they have omitted to set it forth, 
 the defendant cannot obtain a certiorari to remove such convic- 
 tion unless he shews by affidavit that there was no jurisdiction. 
 R. v. Long, 1 M. & R. 139. 
 
 And, though an order or conviction shew jurisdiction on the 
 face of it, the Court will receive affidavits to shew whether in 
 fact there was jurisdiction or not, and grant or refuse a certiorari 
 thereupon. R. v. Bolton, 1 Q. B. 66. 
 
 In Re Kennedy, 17 C. C. C. 342, certiorari was granted, on the 
 ground of want of jurisdiction, because the magistrate had pro- 
 ceeded in the absence of the accused and the summons had been 
 served by the prosecutor himself. 
 
 Excess of Jurisdiction. 
 
 Even where express words take away certiorari they are not 
 applicable where there is an excess of jurisdiction; this may be 
 shewn by affidavit although the conviction may be good ex facie, 
 or where the Court has been illegally constituted or the conviction 
 has been obtained through fraud. Ex parte Bradlaugh, 3 Q. B. D.
 
 490 WILL ALWAYS ISSUE WHEN JURISDICTION EXCEEDED. 
 
 509 ; R. v. Cheltenham Commrs., 1 Q. B. 467 ; Shedden v. Patrick, 
 1 Macqueen, H. of L. C. 535. 
 
 On the question of defective jurisdiction objection may be 
 made as to the character and constitution of the inferior Court, 
 the nature of the subject-matter of the inquiry, or the absence of 
 some preliminary proceeding which was necessary to give jurisdic- 
 tion to the inferior Court. Colonial Bank of Australia v. Willan, 
 L. R. 5 P. C. 417. 
 
 Facts such as are stated above may be brought before the 
 superior Court by affidavit. 
 
 Certiorari refused when the only objections to the proceedings 
 were, (1) that there had been too long an adjournment, the case 
 having been afterwards proceeded with without objection, and, 
 (2) the refusal to adjourn at the request of the defendant: Ex 
 parte Giberson (No. 3), 18 C. C. C. 355. 
 
 Although affidavits will be received to shew that the justices 
 had no authority to enter upon the inquiry, as, for instance, that 
 the question brought before them by the complaint was not one 
 to which their jurisdiction extended, yet the Court will not hear 
 affidavits impeaching their decision or conclusion of facts, or re- 
 viewing their judgment on the evidence. See R. v. Bolton, 1 Q. 
 B. 66, and Ex parte O'Regan, 17 C. C. C. 160. 
 
 As to controverting the magistrate's return, see R. v. Davey, 
 22 C. C. C. 185. 
 
 " It is clear that the decision of a tribunal lawfully constituted, 
 upon a question properly brought before it respecting a matter 
 within its jurisdiction, is not open to review on ceriiorari, but the 
 decision of persons assuming to be a tribunal, that they are law- 
 fully constituted, is open to review. Thus a decision either by a 
 justice that he was in the commission, or by any arbitrator under a 
 statute that he was duly appointed, or by a sheriff that a valid 
 writ of trial had issued to him, might be shewn by affidavit to be 
 untrue." LORD DENMAN, C.J., in R. v. Grant, at p. 63, 19 L. J. 
 M. C. 59, and see R. v. Nunneley, E. B. & E. 852; R. v. Dayman, 
 7 E. & B. 672. 
 
 Where a conviction was bad on the face of it, the writ was 
 allowed to issue notwithstanding there were express words taking 
 it away, the magistrate having convicted of an assault although 
 the complainant only asked sureties to keep the peace. R. v. 
 Deny d al, 20 L. J. M. C. 189.
 
 CROWN MAY ALWAYS HAVE CERTIORARI. 491 
 
 Where by the words of a statute the certiorari is taken away, 
 but by its general tenor that is only done to give the option of 
 appeal to the sessions, the right of proceeding by certiorari is only 
 barred by the party adopting the method of appeal. R. v. Eaton, 
 2 T. E, 89. 
 
 " A certiorari does not go to try the merits of the question, 
 but to see whether the limited jurisdiction has exceeded its bounds. 
 The jurisdiction of the Queen's Bench is not taken away unless 
 there be express words to take it away. This is a settled point." 
 R. v. Morley et al., 2 Burr, at p. 1042. 
 
 Privilege of the Crown. 
 
 The privilege existing on the part of the Crown extends to any 
 private prosecutor, though he may at a subsequent stage of the 
 proceedings have become nominal defendant, as if the conviction 
 had been quashed at the sessions with costs to be paid by the pro- 
 secutor, and he afterwards seeks to quash the order of the sessions. 
 On application at the suit of the Crown, either by the Attorney- 
 General ex officio, or by the private prosecutor, the writ issues as a 
 matter of course and without any ground for its issue being as- 
 signed. 2 Hawk P. C. ch. 27; R. v. Boultbee, 4 A. & E. 498. 
 
 Notice, recognizance, etc., are not required on applications by 
 the Crown or private prosecutor. R. v. Battoms, 1 East 298, 303 ; 
 R. v. Farwell, 2 Str. 1209. 
 
 The distinction between an application for the writ by the 
 Attorney- General ex officio, and by a private prosecutor, is that 
 in the former case the writ is of absolute right, but in the. case 
 of an individual private prosecutor, though the writ issues as of 
 course, yet, upon cause shewn, it may be suspended. 2 Hawk P. 
 C. ch. 27, sec. 27. 
 
 Notwithstanding that certiorari is expressly taken away by a 
 statute from a defendant and he cannot procure it except upon 
 shewing special reason by affidavit, the Crown if it take up the 
 defence may have a certiorari in the name of the defendant with- 
 out giving any special reasons and without reference to any re- 
 strictions imposed in ordinary cases as to the time of applying for 
 it. R. v. Thomas, 4 M. & S. 442; R. v. Patterns, supra. The 
 Attorney-General's authority in writing authorizing defendant's 
 solicitor to apply for the order is required. No recognizance is 
 necessary upon these writs.
 
 492 CERTIORARI AFTER DISMISSAL OF APPEAL. 
 
 The Attorney-General is entitled to a certiorari of absolute 
 right and absolutely in all cases. 
 
 The Attorney-General, on the motion for the discharge of the 
 prisoner, appeared and asked for a certiorari to bring up the mat- 
 ters and an order was granted accordingly, and the case adjourned 
 for the purpose of having the material before the Court. The 
 learned Judge ( (Rror>ELL, j^ savg ^ p jg. j -^ j^ ^ een ^ e case 
 
 of the Attorney-General not having previously moved for such writ, 
 attending and arguing the matter, and then saying that it was 
 probable the conviction was a good one and on that ground asking 
 for a certiorari, the authority of. In re Tinson, (1870) L. K. 5 Ex 
 257, would be conclusive in favour of the defendant. See also R. 
 v. Chaney, (1838) 6 Dowl. 281. But that is not what happened: 
 the Attorney-General did not attempt to support the warrant as it 
 stood ; but asked that the matter might stand over that all material 
 might be brought before the Court." R. v. Nelson, (1908) 15 
 C. C. C. 10. 
 
 Conviction or Order Affirmed on Appeal. 
 
 By sec. 1121 of the Code, no conviction or order made on 
 summary conviction which has been affirmed, or affirmed and 
 amended in appeal, shall be quashed for want of form or be re- 
 moved by certiorari into any superior Court, and no warrant or 
 commitment shall be held void by reason of any defect therein, 
 provided it is therein alleged that the defendant has been con- 
 victed and there is a good and valid conviction to sustain the same. 
 
 Appeals from summary convictions are made under the pro- 
 visions of sec. 750 of the Code, and the following successive sec- 
 tions up to and including sec. 760. 
 
 And by sec. 754 it is provided that the appeal shall be heard 
 and determined upon the merits notwithstanding any defect in the 
 conviction or order appealed from. 
 
 And by sec. 752 where an appeal against a summary convic- 
 tion or order has been lodged in due form the Court appealed to 
 shall try and shall be the absolute judge as well of the facts as 
 of the law, in respect of such conviction. In other words the 
 judgment shall be final. 
 
 And now to complete the finality of this appeal: Sec. 1121 
 says that, if any conviction or order made on summary conviction 
 has been either affirmed, or affirmed and amended on appeal, such
 
 NO CERTIORARI WHERE APPEAL MADE. 493 
 
 conviction shall not be quashed for want of form nor shall it be 
 removed by certiorari into a superior Court. 
 
 No Certiorari where Appeal Taken. 
 
 Then follows sec. 1122, which says that no writ of certiorari 
 shall be allowed to remove any conviction or order had or made 
 before any justice if the defendant has appealed from such con- 
 viction or order to any Court to which an appeal from such con- 
 viction or order is authorized by law, or shall be allowed to re- 
 move any conviction or order made upon such appeal. 
 
 The provisions of these two sections 1121 and 1122 mean that, 
 where a defendant has seen fit to appeal to a Judge of a County 
 or District Court under 750 of the Code, and accepted that forum 
 to investigate his rights, he must abide by the decision of that 
 Court, and such decision in appeal shall be final and conclusive, 
 and bar the appellant's right to further appeal by way of certiorari, 
 unless in certain exceptional cases which will now be noticed. 
 
 For instance, if an appeal has been taken from a summary 
 conviction and the appeal has lapsed because the magistrate has 
 failed to return the conviction, a superior Court may nevertheless 
 issue a certiorari, and quash the conviction on the ground that 
 the magistrate by his conduct had deprived the defendants of a 
 reasonable opportunity of making their defence and had acted in 
 collusion with the prosecutor. Ex parte Cowan, (1904) 9 C. C. C. 
 454, and see R. v. Alford, (1902) 10 C. C. C. 61. 
 
 "As the appellant appealed against his conviction and it was 
 affirmed, he can succeed upon this application only by shewing an 
 absence of any jurisdiction in the convicting magistrate, and 
 that is shewn only if the enactment upon which the conviction is 
 based is ultra vires." MEREDITH, J., at p. 273, in R. v. Horning, 
 (1904) 8 C. C. C. 268. 
 
 The appeal in the above case was from a summary conviction 
 under the Ontario Summary Convictions Act, and it was held that 
 under that Act a certiorari can only be granted in respect of the 
 want of jurisdiction or excess of jurisdiction of the convicting 
 magistrate, and the conviction was affirmed. 
 
 Where there is a right of appeal from a summary conviction, 
 the discretion of the Court as to granting a certiorari should be 
 exercised by refusing the latter unless special circumstances are 
 shewn. R. v. Herrell, (1899) 3 C. C. C. 15, 12 M. E. 522, and 
 see Ex parte Ross, (1895) 1 C. C. C. 153 (N.B.) This latter
 
 494 WHEN ISSUE OF CEBTIORABI DISCRETIONABY. 
 
 case was not approved of in Re Trams, (1899) 10 C. C. C. 63 
 (B.C.). See also, Ex parte Damboise, 16 C. C. C. 292; R. v. Gal- 
 lagher, 18 C. C. C. 347, and R. v. Keenan, 21 C. C. C. 467. 
 
 It was held in Ex parte Robert, 4 C. C. C. 153, that the liquor 
 license law of New Brunswick, by providing that a summary con- 
 viction for selling liquor without a license shall be " final and con- 
 clusive," takes away the right of certiorari, except as regards the 
 jurisdiction of the magistrate. 
 
 This, however, was expressly dissented from by the Supreme 
 Court of New Brunswick in R. v. Allingham, 21 C. C. C. 268, 
 where it was held that such words do not take away the power of 
 the Court to grant a certiorari. See, also, R. v. HolyoTce, 21 C. C. 
 C. 422. 
 
 Although the Indian Act declares that no convictions there- 
 under shall be removed by certiorari into a superior Court, it 
 nevertheless lies where there has been improper conduct of the 
 magistrate, or the fundamental privilege of entitling the party 
 to a fair trial has been overlooked. In this case the magistrate 
 had taken a view of the premises in the absence of the parties. 
 Re Sing Kee, (1901) 5 C. C. C. 86, and see Ex parte Hill, (1891) 
 31 N. B. R. 8-4. 
 
 As to the same provisions in the Canada Temperance Act 
 taking away certiorari: see R. v. Eli, (1896) 10 0. R. 727, and 
 R. v. Wallace, (1883) 4 0. R. 127, 140, and in The Ontario Public 
 Health Act, Re Holland, (1895) 37 TJ. C. R. 214. 
 
 These cases all establish that, where a magistrate has been 
 guilty of a clear dereliction of duty or improper conduct, or has 
 acted contrary to natural justice, certiorari will lie notwithstand- 
 ing that it is taken away by statute. 
 
 " It is very old and often reiterated that, although there is a 
 provision in a statute taking away the writ of certiorari, it does 
 not deprive the superior Court of its power to issue the writ to 
 quash a proceeding on the ground of want of jurisdiction. And 
 it would be a novelty that a provision granting an appeal should 
 restrict the power to correct a proceeding by certiorari more than 
 a provision taking away the writ altogether. The fact is that for 
 want of jurisdiction in an inferior Court the writ of certiorari is 
 the appropriate remedy and an appeal is not." GRAHAM, E.J., at 
 p. 174, in his very able and exhaustive judgment in Re Ruggles, 
 (1902) 5 C. C. C. 163.
 
 CEETIOEAEI WHILST APPEAL PENDING. 495 
 
 The pendency of an appeal to the County Judge does not in- 
 terfere with certiorari unless, at all events, the question of jurisdic- 
 tion is raised upon the appeal. R. v. Starlcey, 6 M. E. 588 ; E. v. 
 Galbraitli, 6 M. E. 14. 
 
 Where the defendant had appealed within the meaning of sec. 
 84 of the Summary Convictions Act, Manitoba, the right to certi- 
 orari was taken away except as to objection going to the juris- 
 diction of the justice. The bringing of the prosecution was the 
 laying of the information and it ought to have been laid before 
 two justices, and the matter of the prosecution was not therefore 
 properly before the two justices on the hearing of the case and 
 they had no jurisdiction to hear or determine it, and the convic- 
 tion was quashed. R. v. Starlcey, (1890) 7 M. E. 43. 
 
 This case was followed in Johnston v. ^O'Reilly, 16 M. E. 40 5 ; 
 12 C C. C. 218. 
 
 The Attorney-General, although not a party to the proceedings 
 in the above matter, intervened, and moved before the full Court 
 against the decision of TAYLOR, C.J., supra. Held, that the At- 
 torney-General was entitled to intervene, but the decision was 
 affirmed. R. v. Starlcey, (1891) 7 M. E. 489. 
 
 The Ontario Statute, 3 Edw. VII. (1902), ch. 12, sec. 14, 
 whicli declares that no conviction under the Ontario Summary Con- 
 victions Act shall be removed by certiorari, except upon the ground 
 that an appeal could not afford an adequate remedy, does not pre- 
 vent the granting of the writ where the magistrate had no jurisdic- 
 tion over the matter adjudicated. E. v. 8t. Pierre, (1902) 5 C. 
 C. C. 365. See E. S. 0. 1914, ch. 90, sec. 10 (3). 
 
 Second Application for Certiorari. 
 
 A second application for a certiorari in aid of habeas corpus, 
 being purely ancillary, may be made before another Judge after 
 the dismissal of one application on the same facts: R. v. W&iss 
 (No. 2), 22 C. C. C. 42, except in Ontario where a right of appeal 
 is, by statute, substituted for the former right to renew the applica- 
 tion as in habeas corpus. 
 
 But see R. v. McKay, 17 C. C. C. 1, where the second applica- 
 tion was refused, although the first was dismissed on a technicality 
 onlv.
 
 496 ISSUE OF CEBTIORAEI IN QUEBEC. 
 
 Jurisdiction in Quebec. 
 
 The superior Court in the province of Quebec has power over 
 a conviction made by a justice of the peace in a criminal matter 
 on certiorari proceedings. R. v. Mercier, (1901) 6 C. C. C. 44. 
 
 The provisions of the Code of Civil Procedure will be applic- 
 able in the case of certiorari as regards the decisions of inferior 
 tribunals in so far and so long as the Statute 12 Viet., ch. 38, sec. 7, 
 is not repealed by the Federal Parliament. But, as respects con- 
 victions having by law the value of convictions pronounced by the 
 Court of King's Bench, that is to say, in a matter of pure crim- 
 inal law, under the provisions of the Criminal Code, the pro- 
 visions of the Code of Civil Procedure have no application. It is 
 to the Court of King's Bench and to the Judges of that Court 
 that it appertains to deal with proceedings by certiorari in mat- 
 ters purely criminal and before such competent Provincial Court 
 as may be designated. (Sec. 576 Grim. Code). DE LOHIMIER, J., 
 at p. 349, in E. v. Marquis, (1903) 8 C. C. C. 346. 
 
 The taking out of a writ of certiorari is a waiver of the right 
 of appeal. Denault v. Robida, (1894) 8 C. C. C. 501. 
 
 The superior Court and every Judge thereof have jurisdiction 
 to review every decision rendered by justices of the peace even in 
 criminal matters by virtue of the laws of Canada as well as by 
 virtue of the Revised Statutes of Quebec. LAVEKGXE, J., in 
 Leonard v. Pelletier, (1903) 9 C. C. C. 19. 
 
 But a Circuit Court in that Province has no such jurisdiction. 
 Dion v. Champagne, 18 C. C. C. 489. 
 
 A writ of certiorari will not be granted to review the judg- 
 ment of the Recorder's Court in the province of Quebec where 
 the law permits an appeal from such judgments. O'Shaugnessy 
 v. Montreal (1904) 9 0. C. 0. 44. 
 
 The above decision was based upon the fact that the defendant 
 could have appealed under s. 879 (now 749) of the Code to the 
 Court of King^s Bench, Crown side, and that, under the provisions 
 of Article 1292 of the Code of Civil Procedure, certiorari will not 
 lie where there i? an appeal from the decision of the inferior 
 Court. 
 
 Under Article 1293, C. C. P. Q., the remedy will lie : 1. Where 
 there is want or excess of jurisdiction. 2. Where the regulations 
 upon which a complaint is brought or the judgment rendered are
 
 WHEN CERTIORARI WILL LIE AND WHEN NOT. 497 
 
 null, or. of no effect. 3. Where the proceedings contain gross 
 irregularities and there is reason to believe that justice has not 
 been or will not be done. 
 
 A deposit of $50 in conformity with Article 217 of the license 
 law of Quebec is a deposit as security for costs and cannot be con- 
 verted into payment of fine and costs. The application for cer- 
 tiorari could not take away from the defendant his option to serve 
 out the term of imprisonment to which he had been condemned 
 in default of such payment. The certiorari suspended the sen- 
 tence (of which defendant had served 10 days) and after it was 
 quashed the defendant was rendered liable to serve out the re- 
 mainder of his term if he so persisted, and, exercising such option, 
 he was entitled to the return of the deposit. Wing y. Sicotte, 
 (1904) 10 C. 0. 0. 171. 
 
 No general rule requiring a petitioner on a writ of certiorari 
 to give security] for the costs and other charges of the case is in 
 existence in the province of Quebec. Tierney v. Ohoquet, 9 Q. 
 P. R. 229. 
 
 Cases where Certiorari Witt or Witt Not Lie. 
 
 A certiorari will not be refused in British Columbia to quash 
 a conviction under a municipal by-law because the applicant 
 might have appealed. Ex parte Ross, (1895) 1 0. C. O. 153, not 
 approved. MARTIN, J., in Re Traves, (1899) 10 C. 0. C. 63. 
 
 The fact that the commitment itself was bad would not affect 
 the conviction. . . . The commitment is not a judicial but 
 simply a ministerial act, carrying out the terms of the conviction, 
 and is not a proceeding that can be brought up here on certiorari, 
 McLEOD, J., at p. 67, 68; in Ex parte Bertin, (1904) 10 0. C. C. 
 65. 
 
 Where the same Court has jurisdiction both in appeal and 
 upon certiorari and a summary conviction has been transmitted 
 by the magistrate and filed in such Court as required by sec. 757 
 of the Code, the writ of certiorari cannot be dispensed with for 
 the purposes of a motion to quash. R. v. Gehrke, ,(1906) 11 C. 
 C. C. 109 ; R. v. MacDonald (No. 2), 5 C. C. C. 279, supra p. 468 ; 
 and see R. v. Monaghan, (1897) 2 C. C. C. 488, where the Court 
 was divided upon the same question. But see R. v. Ames, (1903) 
 10 C. C. C. 52, where SCOTT, J., of the same Court, held to the 
 contrary, and likewise in R. v. Rondeau, (1903) 9 C. C. C. 523. 
 
 C.C.P. 32
 
 498 WHEN CERTIORAEI WILL LIE AND WHEN NOT. 
 
 A magistrate's jurisdiction to make a summary conviction 
 must appear on the face of the proceedings, or he will be presumed 
 to have acted without jurisdiction. Certiorari will lie notwith- 
 standing notice of appeal, and sec. 1122 of the Code, upon any- 
 ground which impeaches the jurisdiction of the magistrate. John- 
 ston v. O'Reilly, (1906) 12 C. C. C. 218. 
 
 An order for discharge of the prisoner will not be made in 
 certiorari proceedings without a writ of habeas corpus. R. v. 
 Goulet, (1907) 12 C. C. C. 365. 
 
 A search warrant issued under sec. 629 of the Code is a judi- 
 cial proceeding and may be removed by certiorari. R. v. Kehr, 
 (1906) 11 C. C. C. 52. So, also, may an order for compensation 
 or restitution made on a speedy trial by a County Court Judge 
 which exceeds his jurisdiction. Ex parte Selig, 17 C. C. C. 70. 
 
 A coroner's warrant to apprehend a witness who had disobeyed 
 a summons is a ministerial and not a judicial act, and certiorari 
 will not be granted on an application to quash the warrant. Re 
 Anderson and Kinrade, (1909) 14 C. C. C. 448. 
 
 After the order absolute for a certiorari and order nisi to quash 
 was obtained, the applicant served notice of his grounds of appeal 
 to the County Court, so that his latest step in the proceedings was 
 in the appeal. Under these circumstances the Court declined to 
 interfere by certiorari as the appeal proceedings were pending. 
 Ex parte McCorquindale, ,(1908) 15 C. C. C. 187, and see In re 
 Kelly, 27 N. B. E. 553. 
 
 The right to take the new procedure in Ontario, under 8 Edw. 
 VII, c. 34, which is substituted for certiorari, must be confined 
 to cases in which prior to this legislation the defendant would have 
 been entitled to a writ of certiorari. R. v. CooTc, (1908) 14 C. C. 
 C. 495, 18 0. L. R. 415; followed in R. v. Renaud, (1909) 15 C. 
 C. C. 246. 
 
 When no suggestion is made as to the insufficiency of the in- 
 formation, or that the magistrate had no jurisdiction over the 
 offence charged as well as over the person charged with the offence, 
 and the right of certiorari had been expressly taken away, any 
 supposed miscarriage of the inquiry from the insufficiency of the 
 evidence or as to its irregularity cannot be inquired into by the 
 Court. Following Ex parte Daley, 27 N". B. R. 129; Ex parte 
 Morison, (1909) 16 C. C. C. 28, 39 N. B. R. 298. 
 
 See, also, R. v. Holyoke, 21 C. C. C. 422.
 
 PRACTICE IN BEITISH COLUMBIA AND QUEBEC. 499 
 
 Where a case has been decided upon its merits and the accused 
 was acquitted by the magistrate, a certiorari will not be granted 
 to quash the order of acquittal, the object being to re-open the 
 whole case, the only ground urged being that the magistrate re- 
 fused to compel a witness to answer a material question. R. v. 
 Reddin, (1910) 16 C. C. C. 163. See R. 0. Causeway & Tramway 
 Co. v. JJ. Antrim, IT. R. (1895) 2 Q. B. D. 603. 
 
 An application by the accused for a certiorari to remove a 
 summary conviction may be made without making the informant 
 a party thereto or serving him with notice of the application, if 
 an immediate order to quash without the issue of the writ is not 
 asked and if the Court has not specially directed service on the 
 informant. Ex parte Harris, (1906) 14 C. C. C. 109, 4 W. L. E. 
 530. 
 
 There is no appeal in British Columbia to the full Gourt from 
 the decision of a single Judge quashing a summary conviction 
 on certiorari. R. v. Carroll, (1909) 14 0. C. C. 338. 
 
 Provincial statutes in force at the time of Confederation in 
 1867, regarding certiorari in criminal matters, remain in force 
 except in so far as they have been repealed by or are incon- 
 sistent with Dominion legislation. The Court of King's Bench in 
 Quebec has exclusive jurisdiction to review the decisions of mag- 
 istrates upon summary trials for indictable offences. R. v. Mar- 
 quis, (1903) 8 C. C. 0. 346. 
 
 The Supreme Court of British Columbia sitting en bane 
 as the full Court will not hear a motion for a rule nisi to quash 
 a conviction, as the motion can be made to a single Judge under 
 B. C. S. C. Act, s. 5. R. v. Tanghe, (1904) 8 C. O. 0. 160. 
 
 As to the practice in British Columbia, see, further, R. v. 
 Jones, 18 C. O. C. 414; R. v. Ferguson, 19 C. C. C. 31. 
 
 JUVENILE OFFENDERS' PART OF THE CODE. 
 
 1123. No conviction under Part XVII. shall be quashed for want of 
 form or be removed by certiorari or otherwise into any Court of Record ; 
 and no warrant of commitment under the said Part shall be held void by 
 reason of any defect therein, if it is therein alleged that the person has 
 been convicted and there is a good and valid conviction to sustain the same. 
 
 CONVICTIONS OR WARRANTS NOT VOID FOR IRREGULARITIES. 
 
 1124. No conviction or order made by any justice, and no warrant for 
 enforcing the same, shall, on being removed by certiorari, be held invalid for 
 any irregularity, informality or insufficiency therein, if the Court or Judge 
 before which or whom the question is raised upon perusal of the deposi- 
 tions, is satisfied that an offence of the nature described in the conviction.
 
 500 IRBEGULARITIES IN CONVICTIONS AND WABEANTS. 
 
 order or warrant, has been committed, over which such justice has jurisdic- 
 tion, and. that the punishment imposed is not in excess of that which might 
 have been lawfully imposed for the said offence : Provided that the Court 
 or Judge, where so satisfied, shall, even if the punishment imposed or the 
 order made is in excess of that which might lawfully have been imposed or 
 made, have the like powers in all respects to deal with the case as seems 
 just as are by section seven hundred and fifty-four conferred upon the Court 
 to which an appeal is taken under the provisions of section seven hundred 
 and forty-nine. 
 
 2. Any statement which, under this Act or otherwise, would be suffi- 
 cient if contained in a conviction, shall also be sufficient if contained in an 
 information, summons, order or warrant. 
 
 The provisions of this section are expressly made applicable to 
 convictions on summary trials, Part XVI., by section 797 (2) as 
 enacted in 1913. See ante, -p. 452. 
 
 1125. The following matters amongst others shall be held to be within 
 the provisions of the last preceding section : 
 
 (a) The statement of the adjudication or of any other matter or thing 
 in the past tense instead of in the present; 
 
 (6) The punishment imposed being less than the punishment by law 
 assigned to the offence stated in the conviction or order or to the 
 offence which appears by the depositions to have been committed ; 
 
 (c) The omission to negative circumstances, the existence of which 
 would make the act complained of lawful, whether such circum- 
 stances are stated by way of exception or otherwise in the section 
 under which the offence is laid, or are stated in another section. 
 
 2. Nothing in this section contained shall be construed to restrict the 
 generality of the wording of the last preceding section. 
 
 No matter what irregularity, informality or insufficiency ex- 
 ists in the conviction, or order, or the warrant enforcing it, the 
 same shall not by reason of anyi of these things be held invalid 
 if the Court or Judge after perusing the depositions is satisfied 
 that 
 
 (a) An offence of the nature described in the conviction, order 
 or warrant has been committed; (6) that the justice had jurisdic- 
 tion, and (c) that the punishment awarded is not in excess of 
 that imposed by the law governing the offence. And, if the Court 
 or Judge is satisfied as to the offence being committed and that 
 the justice had jurisdiction, but finds the punishment is in excess 
 of that which could be lawfully imposed, it or he can deal with 
 the case as seems just, and exercise all the powers conferred upon 
 a County Court Judge in appeal under sec. 754. That is, in this 
 event, the Court or Judge may hear and determine the charge or 
 complaint on which the conviction or order has been had or 
 made upon the merits, and may confirm, reverse or modify the 
 decision of the justice or make such other conviction or order 
 in the matter as the Court thinks just. And the Court may, by 
 such order, exercise any power which the justice whose decision 
 is appealed from might have exercised, and map make such order
 
 AMENDING CONVICTIONS ON CEBTIOEABI. 501 
 
 as to costs to 'be paid by either party as the Court thinks fit. 
 And such conviction or order so made by the Court shall have the 
 same effect and may be enforced in the same manner as if it had 
 been made by such justice. And any conviction or order so made 
 by the Court may also be enforced by process of the Court itself. 
 
 See further the comments upon sec. 754 in Chapter VIII, 
 page 343, supra. 
 
 " Now it is one thing to decline to quash a conviction where 
 there is evidence upon which a magistrate might convict and an- 
 other thing to interfere actively and amend a conviction. To 
 do that it seems to me that the Court or a Judge must from the 
 depositions be satisfied that, if trying the defendant in the first 
 instance, the Court or Judge would upon that evidence have con- 
 victed. Had the defendant been tried before me, I could never 
 have convicted him upon the evidence as it stands. The convic- 
 tion should be quashed." TAYLOR, C.J., at p. 516, in R. v. Her- 
 rell, (1898) 1 C. C. C. 510, 12 M. E. 198, and see KILLAM, J., 
 at p. 522, and BAIN, J., p. 527, ibid. And see E. v. Coulson, 
 (1893) 1 C. C. C. 114, 24 0. E. 246; R. v. Hughes, 2 C. C. C. 5. 
 
 Conviction under the New Brunswick Liquor License Act, 
 1887. The magistrate imposed a fine of $50, or in default two 
 months with hard labour. The Court amended the conviction by 
 striking out the words "with hard labour," so as to correspond 
 with the minute of conviction which was all right. Ex parte 
 Nugent, (1895) 1 C. C. 0. 126. 
 
 As to amending convictions on certiorari, see R. v. Menary, 
 (1890) 19 0. E. 691; R. v. Brady, 12 0. E. 358; R. v. McAnn, 
 (1896) 3 C. C. C. 110, and R. v. Law Bow, (1903) 7 0. C. C. 
 468; R. v. Hartley, 20 0. E. 481. 
 
 The Judges of the Court of Common Pleas, in conflict with 
 the judgment of the King's Bench Division in R. v. Coulson, 
 supra, expressed the opinion that the evidence should be looked 
 at when the proceedings are removed by certiorari in order to 
 see if there was any evidence whatever to sustain the magis- 
 trate's finding, even if no defect appeared on the face of the con- 
 viction, and if there was any evidence of that character the Court 
 should not review all the evidence or find as to the! propriety of 
 the magistrate's dismissal. R. v. Coulson, (1896) 27 0. E. 59. 
 This decision was followed in R. v. Barber, 23 0. L. E. 373. 
 
 The Court will not on certiorari quash an adjudication upon 
 the ground tbat the fact however essential has been erroneously 
 found. An adjudication by a tribunal having jurisdiction over
 
 502 NATUBE OF AMENDMENTS MADE. 
 
 the subject matter is, if no defects appear on the face of it, to be 
 taken as conclusive of the facts therein stated. E. v. The 
 " Troop" 29 S. C. R. at p. 673. 
 
 Sometimes provisions regulating procedure in criminal pro- 
 secutions are to be deemed directory only and not imperative. 
 R. v. McNutt, 20 C. O. C. 174. 
 
 Imposing Less Punishment than Law Prescribes. 
 
 Amongst the matters held by sec. 1125, supra, to be within the 
 scope of sec. 1124, supra, is that (6) "The punishment imposed 
 being less than the punishment by law assigned to the offence 
 stated in the conviction or order, or to the offence which appears 
 by the depositions to have 'been committed." 
 
 If, for instance, a Statute or Ordinance prescribed a penalty 
 of $25 for a first offence and a conviction is had, and only a 
 penalty of $5 is imposed, this would be the imposition of a less 
 punishment than is by law assigned, and, but for the saving pro- 
 vision of paragraph (6) of sec. 1125, quoted above, the convic- 
 tion would be bad and quashed accordingly. 
 
 See E. v. Hostyn, (1905) 9 C. C. 0. 138. 
 
 Imposing Greater Punishment than Law Prescribes. 
 
 See R. v. Rudolph, 17 C. Cl C. 206 ; R. v. McKenzie, 12 C. C. 
 C. 435, and R. v. Spooner, post, for cases in which the ourt 
 reduced the sentence to the proper term under section 1124, and 
 see, also, additional cases on this point cited at p. 506, post. 
 
 Hearing on the Merits Under Sec. 1121^. 
 
 The proviso to section 1124, which declares that the Court or 
 a Judge acting under its provisions shall "have the like powers 
 in all respects to deal with the case as seems just; as are by sec. 
 754 conferred upon the Court to which an appeal is taken under 
 the provisons of sec. 749,'* calls for some consideration. And 
 this, in view of the extended powers which are given to a Oounty 
 Court Judge in appeal under sec. 754, since he shall hear and 
 determine the charge or complaint "upon the merits," notwith- 
 standing any defect in the conviction or order, or that the punish- 
 ment is in excess of what might be lawfully imposed.
 
 EEHEARING CHAEGE ON THE MEEITS. 503 
 
 Query, whether in certiorari under sec. 1124 any duty is cast 
 upon the Court of "hearing and determining the charge or com- 
 plaint upon the merits" otherwise than by perusing the deposi- 
 tions. 
 
 It would hardly seem so, although by sec. 754 the County 
 Court Judge is not empowered to arrive at his decision "upon 
 perusal of the depositions." The duty is cast upon him of " hear- 
 ing and determining the charge or complaint on which such con- 
 viction or order has been had or made upon the merits." He 
 cannot so hear and determine the matter without taking the tes- 
 timony! of witnesses and ascertaining therefrom what the merits 
 of the case are. The hearing in appeal under section 754 is a 
 trial de novo of the original charge or complaint made before the 
 justice who made the conviction. 
 
 On the hearing of the appeal any of the parties thereto may 
 call witnesses and adduce evidence, whether such witnesses 
 were called or evidence adduced at the hearing before the justice 
 or not, and the depositions of witnesses taken on the hearing be- 
 low before the justice can only be read on such appeal when the 
 same have been certified by the justice, and when the Court ap- 
 pealed to is satisfied by affidavit, or otherwise, that the personal 
 presence of the witness cannot be obtained by any reasonable ef- 
 forts. (See sec. 752). 
 
 Now, under sec. 1124 the proceedings to be taken by the 
 Oourt, so far as the consideration of evidence is concerned, is 
 limited to the Court perusing the depositions. And from this 
 perusal the Court acquires knowledge of the merits and must so 
 peruse these depositions in order that the Court can be satisfied: 
 (1) That an offence of the nature described in the conviction, 
 order or warrant has been committed; (2) that the justice had 
 jurisdiction, and (3) that the punishment imposed is not in 
 excess of that which lawfully might be imposed. 
 
 And then comes the proviso that, when the Courts are so 
 satisfied, that is satisfied by the reading of the depositions, even 
 if the punishment imposed or order made is in excess of that 
 which might lawfully; have been imposed, they shall, if they want 
 to exercise it, have all the powers in all respects to deal with the 
 case as seems just under sec. 754. And amongst these powers is 
 the right "to confirm, reverse or modify the decision of such 
 justice, or to make such other conviction or order in the matter 
 as the Court deems just, etc."
 
 504 ASCERTAINING THE MERITS FROM THE DEPOSITIONS. 
 
 It is submitted that it is neither required nor contemplated by 
 sec. 1124 that the Cburt or Judge should do more than " peruse 
 the depositions " for the purpose of hearing and determining the 
 merits, in order to confirm, reverse or modify the decision of the 
 justice, or to make such other order or conviction in the matter as 
 the Court thinks fit. 
 
 The Court, or a Judge, must read the depositions in order to 
 ascertain the merits of the case, and it is after a perusal of the 
 depositions, and not till then, that the Court or a Judge can 
 invoke the powers conferred by sec. 754 for the purpose of con- 
 firming, reversing, modifying or amending the conviction. But 
 under sec. 754 the County Court Judge hearing the appeal is 
 required to do more in order to exercise these powers; he must 
 hear and determine the charge or complaint upon the merits, and 
 for this purpose try the case de novo. The decision of the Court 
 or of a Judge on certiorari, under sec. 1124, is arrived at after 
 hearing and determining the merits as disclosed in the deposi- 
 tions, or upon evidence already taken, .but the County Court 
 Judge so determines after heating evidence taken before him 
 viva voce. 
 
 In his judgment in R. v. Murdoch, (1900) 4 C. C. C. 82, at 
 page 90, MR. JUSTICE OSLER says : " The effect of these two sec- 
 tions of the Code, however, now is that, if satisfied upon a per- 
 usal of the depositions that an offence of the nature described in 
 the conviction has been committed, the Court may) hear and de- 
 termine the charge upon the merits as disclosed by the depositions 
 returned in the certiorari and may vary, confirm, reverse or 
 modify the decision of the justice or make such other order as 
 they think just, and may by such order exercise any power which 
 the justice might have exercised." 
 
 Amending the Conviction. 
 
 And see R. v. Spooner, (1900) 4 C. C. C. 209, where the 
 Oourt treated the conviction as having been made under the Sum- 
 mary Conviction Clauses of the Code, and reduced the sentence 
 from 12 months to 10 months and amended the conviction ac- 
 cordingly. And at page 215, STREET, J., saye: "Upon being 
 brought before the magistrate and charged with appearing the 
 keeper of a house of ill-fame, the prisoner pleaded guilty. This 
 was a trial upon the merits, and the plea was an admission by 
 the prisoner that she appeared to be the keeper of such a house."
 
 PEEUSAL OF THE DEPOSITIONS TO ASCERTAIN MERITS. 505 
 
 And see B. v. MeiJcelham, (1905) 10 C. C. O. 382; E. v. Toy 
 Moon, 21 M. E. 527; E. v. Dunlap, 22 C. C. C. 245; E. v. Belmont, 
 23 C. C. C. 89. 
 
 Where a County Court Judge, on an appeal from a summary 
 conviction, quashed the conviction as being invalid on the face 
 without hearing any evidence or trying the" case de novo, a man- 
 damus to compel the Judge to re-open the appeal for the pur- 
 pose of hearing evidence was refused, the Court holding, on the 
 authority of E. v. JJ. Middlesex, 2 Q. B. D. 516, that it had 
 no power to interfere by mandamus, there having been a deci- 
 sion byi the County Court Judge on the legal merits. Strang v. 
 Gellatley, (1904) 8 C. 0. C. 17 (B.C.). 
 
 In E. v. McKenzie, 12 C. C. C. 435, (Nova Scotia), on a 
 motion to set aside a conviction for an infraction of the Customs 
 Act of Canada, the defendant's counsel contended that the Court 
 must be satisfied upon a perusal of the depositions that the of- 
 fence charged was committed and must also re-try the case by 
 having the witnesses orally examined before it, before amending 
 the conviction. The Chief Justice delivered a dissenting judg- 
 ment, but the majority of the Court held that the conviction 
 should be amended. 
 
 " As the application to quash the conviction, brought up upon 
 a writ of certiorari, usually takes place before a Court of Appeal 
 (as in Nova Scotia), when the facts are brought forward and 
 disposed of upon evidence already taken, there would be a strong 
 presumption that the powers conferred are to be exercised accord- 
 ing to the practice of the Court. There is nothing in the expres- 
 sion ' hear and determine ' which limits the investigation to oral 
 testimony. The words 'hear' and 'hearing' were expressions 
 most commonly used to express the act of the Court in disposing 
 of cases upon evidence already taken. The expression, 'heard 
 and determined,' on appeals from justices is satisfied without a 
 trial by witnesses. The King v. Cawston, 4 Dowl. & Ry. 445. If 
 the case has to be tried by witnesses, de now, why make it a con- 
 dition that the Court should be satisfied (that the offence has 
 been committed) only upon a perusal? The defendant's rights 
 would be amply guarded if the provision was that it should be 
 satisfied upon affidavit, a very usual way of applying for amend- 
 ment if, afterwards, a conviction could only take place upon a 
 trial de novo." GRAHAM, E.J., p. 443, ibid. 
 
 "But when the procedure of sec. 883 (now 754) is adapted 
 to the case of a conviction brought up under section 889 (now
 
 506 CONVICTIONS AMENDED ON CERTIORABI. 
 
 1124), I do not think it calls for a second hearing on the merits, 
 if there has been one already, as I think there should be, at the 
 time when the question is raised as to the validity of the convic- 
 tion, if there are any merits to be urged. This hearing, I think, 
 must take place on the depositions before the Court." RUSSELL, 
 J., p. 447, ibid. 
 
 Where after a perusal of the depositions the Court is satisfied 
 that the commission of the offence has been established, but the 
 conviction is defective in awarding six months' imprisonment 
 where only three months could be inflicted, the Court has power 
 to amend the conviction by reducing the term to that allowed by 
 the statute. R. v. McKenzie, supra, and see R. v. Rudolph, 17 
 C. C. C. 206. 
 
 As additional examples of cases where the conviction was 
 amended by striking out or reducing unauthorized punishments, 
 see R. v. Graves (No. 1), 16 C. C. C. 150; R. v. CooTc, II., 234: 
 Collette v. R., II., 281; R. v. Crawford, 20 C. C. C. 49; R. v. 
 Marcinko, 19 C. C. C. 388. But see R. v. Alexander, 21 C. C. 
 C. 473, where the conviction was not amended because the mag- 
 istrate had no jurisdiction to try the prisoner as he had done. 
 
 The Court should not amend a conviction if in so doing it has 
 to exercise the discretion of the magistrate. Also, where the 
 only penalty authorized has been imposed, but with an unauthor- 
 ized addition; the latter may be struck out on amendment after 
 its return under certiorari. R. v. Whiffin, (1900) 4 C. C. C. 141. 
 
 As to amending convictions generally, see R. v. Fitzgerald, 19 
 C. O. C. 39. 
 
 The powers of amendment under sec. 1124 do not apply where 
 there is an inherent defect in the procedure which has deprived 
 the defendant of a fair trial. Re Sing Kee, (1901) 5 C. C. C. 86. 
 
 Proceedings by certiorari and habeas corpus are not "an ap- 
 peal;" and, when the powers of amendment of a conviction under 
 a provincial statute are limited to "appeals" from convictions 
 or orders, a conviction which illegally imposed hard labor can- 
 not be amended on the habeas corpus motion. Re Ching How, 
 19 C. C. C. 176. 
 
 An omission to state or allege the knowledge of the accused 
 will not invalidate a conviction if the Court on perusal of the 
 depositions is satisfied that the accused had such knowledge. 
 R. v. Crandall, 27 0. R. 63.
 
 FURTHER CASES WHERE CONVICTIONS AMENDED. 507 
 
 For other cases of convictions amended on certiorari, see B. 
 v. O'Connor, 20 C. C. C. 75, and R. v. Demetrio, 20 C. C. C. 
 316, 318. 
 
 Where an information has been amended in the presence 
 of the informant, and the accused notified that he would 
 be tried on the amended information, the fact that the informa- 
 tion was not re-sworn after amendment will not invalidate the 
 proceedings if the defendant did not take any objection. Being 
 satisfied from a perusal of the depositions that an offence of the 
 nature described in the conviction has been committed by the de- 
 fendant and that the magistrate had jurisdiction over it, and that 
 the punishment imposed is not in excess of that by law provided, 
 the Court should not hold the conviction invalid by reason of 
 the date and place of the offence not being stated in it, where 
 these clearly appear from the depositions, and the Court has 
 power under section 883 (now 754) and 889 (now 1124) of the 
 Criminal Code to amend the conviction by stating the offence to 
 have been committed at B. on 29th July, 1902. R. v. Lewis, 
 (1903) 6 C. C. C. 499. 
 
 In R. v. Toy Moon, 19 C. O. C. 33, the Court amended, under 
 sec. 1124, a conviction for playing or looking on at an unlawful 
 game, by striking out the charge of looking on. 
 
 On a motion to quash a conviction for selling during pro- 
 hibited hours, where the existence of a license is not proved, the 
 Court will not amend the conviction so as to make it one for sell- 
 ing without a license. R. v. Williams, (1892) 8 M. R. 342. 
 
 Court will not Consider the Weight of Evidence. 
 
 If there is any evidence upon which a conviction can be based 
 the Court will not consider the weight of evidence. R. v. Mc- 
 Arthur, (1906) 14 0. C. C. 343; see R. v. Green, 12 P. R. 373, 
 375; In re Trepanier, 12 S. C. R. Ill; R. v. Bowman, 2 C. C. C. 
 89; R. v. Daun, (1908), 11 C. C. C. 244; R. v. McElroy, 22 C. 
 C. C. 123. 
 
 The defendant was charged with an offence against the Lord's 
 Day Act of Ontario, R. S. 0. 1897, ch. 246, and adjudged to pay 
 a fine. Upon motion for a rule nisi to quash the conviction, 
 Held, that the finding of the magistrate upon a question of fact 
 within, his jurisdiction would not be reviewed upon certiorari; 
 the remedy, if any, was by appeal. Rule refused. R. v. Urquhart, 
 4 C. C. C. 256.
 
 508 AWARDING COSTS IN CERTIORARI CASES. 
 
 The omission of the word " knowingly " from both informa- 
 tion and conviction is a matter of substance and not a mere 
 matter of form, and the defect is not curable upon certiorari as 
 an "irregularity, informality or insufficiency" under sec. 889 
 (now 1124) of the Code. R. v. Haynes, (1903) 6 C. C. 0. 357. 
 But see R. v. Crandall, supra. 
 
 When a summary conviction is not on its face defective and 
 the justice had general jurisdiction over the subject matter, the 
 adjudication involved in the merits of the case on the facts, as 
 distinguished from collateral facts upon which the justice's juris- 
 diction depends, is not reviewable on certiorari. R. v. Beagan 
 (No. 1), 6 C. O. C. 54, and see R. v. The Troop, (1899) 29 S. C. 
 E. at p. 673. 
 
 Costs against Prosecutor or Applicant. 
 
 The High Court in Ontario has no jurisdiction on certiorari 
 proceedings respecting a criminal charge under Dominion laws, 
 to award costs against the prosecutor or magistrate on the con- 
 viction being quashed. There is jurisdiction to award costs 
 against an unsuccessful applicant in certiorari proceedings re- 
 specting a purely criminal charge, either because of the recog- 
 nizance which he has entered into to pay costs, or of the inherent 
 power which the Court possesses to give costs as a punishment 
 for erroneously putting the jurisdiction of the Court in motion. 
 R. v. Bennett, (1902) 5 0. C. C. 456, and see R. v. Parlby, 
 (1889) 6 T. L. R. 37. 
 
 Where a magistrate returns an amended conviction in cer- 
 tiorari proceedings and the conviction is sustained only by rea- 
 son of the amendment, costs of the proceedings should not be 
 awarded against the applicant. R. v. Whiff en, (1900) 4 C. C. 
 C. 141. 
 
 When the onlyi record of conviction produced, before the 
 institution of certiorari proceedings to quash the same, is bad, 
 and a valid amended conviction is produced to the Court, the 
 costs of opposing the motion should not be awarded against the 
 applicant. R. v. McAnn, (1896) 3 C. O. C. 110. 
 
 In Nova Scotia, if the magistrate and the informant appear 
 upon and unsuccessfully oppose an application for certiorari to 
 remove a conviction, they may be ordered to pay the costs of the 
 motion in the event of the conviction being quashed. R. v. Sarah 
 Smith, (1899) 2 C. C. C. 485.
 
 SECURITY BY RECOGNIZANCE OR DEPOSIT. 509 
 
 On motion to quash a conviction being unopposed, no costs 
 were allowed and terms were imposed that no action should be 
 brought by the defendant. E. v. McLeod, (1897) 1 C. C. C. 10 
 (N.S.). 
 
 Costs of certiorari proceedings are not usually given where the 
 conviction is amended and affirmed as amended. R. v. Higham, 
 7 E. & B. 557. 
 
 Costs were refused to the justice as against the defendant 
 where an amended conviction had been returned, on the ground 
 that the application was justifiable at the time it was launched. 
 Re Plunkett, (1895) 1 C. C. 0. 365. 
 
 Restitution of Fine and Costs When Conviction Quashed. 
 
 This will be ordered if applicant has paid them. R. v. Hung 
 Gee, 21 C. C. C. 411. 
 
 SECURITY BY EECOGNIZANCE OR DEPOSIT. 
 
 1126. The Court having authority to quash any conviction, order or 
 other proceeding by or before a justice, may prescribe by general order that 
 no motion to quash any conviction, order or other proceeding by or before 
 a justice, brought before such Court by certiorari, shall be entertained 
 unless the defendant is shewn to have entered into a recognizance with one 
 or more sufficient sureties, before a justice or justices of the county or 
 place within which such conviction or order has been made, or before a 
 Judge or other officer, as may be prescribed by such general order, or to 
 have made a deposit to be prescribed in like manner, with a condition to 
 prosecute such writ of certiorari at his own costs and charges, with effect, 
 without any wilful or affected delay, and, if ordered teo to do, to pay the 
 person in whose favour the conviction, order or other proceeding is affirmed, 
 his full costs and charges to be taxed according to the course of the Court 
 where such conviction, order or proceeding is affirmed. 
 
 It is the Court having authority to quash any conviction, etc., 
 that is to prescribe by general order as to security for costs either 
 by way of recognizance with one or more sufficient sureties or by 
 deposit. 
 
 The Courts referred to are "superior Courts of Criminal jur- 
 isdiction" in each of the provinces and territories (sec. 576). 
 
 In Quebec the Court of King's Bench ; in Ontario the Supreme 
 Court of Judicature (sec. 576 ,(2)); i n British Columbia, Nova 
 Scotia, New Brunswick, Alberta and Saskatchewan the Supreme 
 Court of those provinces; in Manitoba the Court of Appeal, or 
 the Court of King's Bench (Crown side) ; in Prince Edward Is- 
 land the Supreme Court of Judicature; in the Yukon Territory 
 the Territorial Court.
 
 510 CROWN RULES IN THE DIFFERENT PROVINCES. 
 
 CROWN RULES IN ONTARIO. 
 
 In Ontario the High Court passed a general order on the 
 17th November, 1886, relating to security on certiorari, and this 
 rule prevailed until the Grown Eules governing the practice in 
 certiorari were promulgated by the Supreme Court of Judicature 
 for Ontario on the 27th March, 1908, when the rule of the 17th 
 November, 1886, was repealed. See the Judicature Act, ch. 56, R. 
 S. 0. 1914, sec. 63, where the rules are set out as they now stand. 
 These rules are set out at length at the end of this chapter. See 
 also Canada Gazette, vol. 41, p. 3160. The rule relating to recog- 
 nizance is sub-sec. 7, and is summarized as follows : " The motion 
 shall not be entertained unless the return day thereof be within 
 six months after the conviction, order, warrant or inquisition, or 
 unless the applicant is shewn to have entered into a recognizance 
 with one or more sufficient sureties in the sum of $100 before a 
 magistrate of the county within which the conviction or order or 
 inquisition was made or the warrant issued, etc., and the recog- 
 nizance with an affidavit of the due execution thereof shall be 
 filed with the Clerk in Chambers of the Court in which such 
 motion is made or is pending. The applicant may make a de- 
 posit of $100 with the Registrar of the Court." 
 
 Nova Scotia Crown Eules. 
 
 The Nova Scotia Crown Rules 27 to 37 govern the practice as 
 to certiorari, and are set out at the end of this chapter. Under 
 these rules a recognizance with two sureties in the sum of $200 
 must be filed and additional security may be ordered. 
 
 Affidavits of justification are imperative, and leave to file such 
 affidavits pending the motion to quash cannot be granted. Mc- 
 Isaac v. McNeil, 28 N. S. R. 424. 
 
 British Columbia Rules. 
 
 The British Columbia "Crown Rules 1896," will be found 
 at the end of this chapter. 
 
 Rule 5 provides for recognizance in certiorari proceedings. 
 
 There is a further condition in the recognizance here beyond 
 those required in Ontario, since it is provided that the cognizor 
 will " pay the partyi in whose favour or for whose benefit such 
 judgment, order or conviction shall have been given or made,
 
 PRACTICE IN ONTAEIO AND BRITISH COLUMBIA. 511 
 
 within one month after the said judgment, etc., shall be con- 
 firmed, his full costs, etc. The Ontario rule does not specify any 
 particular time within which the costs shall be paid. 
 
 By Eule 6, every recognizance with affidavit of justification 
 and due execution shall be filed with the Kegistrar of the Court 
 before the issue of any writ of certiorari. This rule must be 
 strictly complied with. R. v. Ah Gin, (1892) 2 B. C. R. 207, 
 R. v. Geiser (No. ), 7 C. C. C. 172 (B.C.). 
 
 The British Columbia Rules also differ from the Ontario Rule 
 since there is no provision in the former for a deposit of money 
 in lieu of a recognizance. 
 
 In Ontario the surety must justify in the sum of $100 over 
 and above anyi amount for which he may be surety, as well as over 
 and above his debts. R. v. Rolinet, (1894) 2 C. C. C. 382. 
 
 If there is no affidavit of justification the Court cannot enter- 
 tain the motion. R. v. Richardson, R. v. Addison, (1889) 17 0. 
 R. 729. 
 
 The recognizance must be entered into before a justice of the 
 county in which the conviction was made; if before a justice of 
 another county it will be invalid. R. v. Johnson, (1904) 8 C. C. 
 C. 123. 
 
 Ontario Crown Rule sub-sec. (7), as to recognizance under 
 Code 1126, does not apply to applications made by a prosecutor 
 whether acting directly on behalf of the Crown> or as a private 
 prosecutor. Re Martin & Garlow, (1910) 15 C. C. C. 446. 
 
 As we have already seen, unless there are express words in the 
 Act, or an intention manifestly appearing in the same, prohibit- 
 ing the Crown as well as the subject from removing proceedings 
 by certiorari, nothing will restrain the prerogative right of the 
 Crown in this respect. In none of the rules is there anything to 
 be found limiting the time within which the Crown may move for 
 certiorari or requiring the Crown to give security^ In the British 
 Columbia rules, the Attorney-General, acting on behalf of the 
 Crown, is specifically exempted from having to give security. The 
 principle is so well understood and so ingrafted upon our law, 
 that we presume that is the reason no specific mention is made as 
 to the Crown in the Ontario, or Nova Scotia Rules. 
 
 In Nova Scotia it is not necessary that a recognizance in 
 certiorari proceedings should set out that the bail has resided for 
 a month at the place of residence. R. v. Burke (No. 1), (1903) 
 7 C. C. C. 538.
 
 512 ENGLISH CROWN RULES AS TO RECOGNIZANCE. 
 
 Where proceedings pending 'before an inferior Court were 
 removed by certiorari into a Superior Court after a conviction, 
 and before the date fixed for sentence a warrant of commitment 
 having issued enforcing the conviction, the same was held to be 
 invalid as being unauthorized after the proceedings had been 
 removed by certiorari. R. v. Foster, (1903) 7 C. C. C. 46. 
 
 English Crown Office Rule No. 24. 
 
 Under the English Crown Office Rules (1906), Rule No. 24, 
 the party obtaining the writ, whether for removal of an indict- 
 ment or conviction, (except the Attorney-General and the prose- 
 cutor of an indictment against a body corporate) is required to 
 enter into a recognizance with sureties for the due prosecution of 
 the proceedings, and to pay the costs in the event of being un- 
 successful. The recognizance on a writ to remove a conviction, 
 etc., is to be in the sum of 50 and to be entered into before a 
 justice where the conviction, &c., was made, or a Judge of the 
 High Court. 
 
 DEPOSIT IN CASH. 
 
 Where a deposit in cash is made in lieu of recognizance in 
 certiorari it is not necessary that the applicant should file at the 
 same time a written document setting forth the condition upon 
 which the deposit was made. R. v. Davidson, (1900) 6 C. C. C. 
 117. 
 
 The recognizance or deposit is only necessary in case of a 
 motion to quash a conviction by certiorari. If the conviction or 
 proceeding sought to be quashed is already before the Court, e.g., 
 in a previous motion for habeas corpus, no certiorari is necessary 
 in aid of the motion to quash, and in such a case no recognizance 
 or deposit is required. R. v. Wehlan, 45 U. 0. R. 396. 
 
 ENFORCING RECOGNIZANCE ON CERTIORARI. 
 
 It is provided by sec. 1096 of the Code that the like proceed- 
 ings may be had for enforcing the condition of a recognizance 
 taken under sec. 1126 as might be had for enforcing the condition 
 of a recognizance taken under the Act of the Parliament of the 
 United Kingdom passed in the fifth year of the reign of His 
 Majesty King George the second, chapter 19.
 
 ENFORCING CONDITION OF RECOGNIZANCE. 513 
 
 Sec. 3, 5 George II, ch. 19, provides that the party entitled to 
 the costs, within ten days after demand made of the person or 
 persons who ought to pay the costs, upon oath made of the mak- 
 ing such demand and refusal of payment thereof, shall have an 
 attachment granted against him', or them, for the contempt; and 
 the recognizance given upon the allowing the certiorari shall not 
 be discharged until the costs shall be paid and the order be com- 
 plied with and obeyed. 
 
 Upon the Master's allocatur therefor and affidavit of the ser- 
 vice thereof, and of demand and non-payment as above, an attach- 
 ment issues, on motion for that purpose. No attachment can issue 
 for the costs, except where there has been a recognizance. 
 
 The above is taken from Paley on Convictions (1827), 2nd 
 ed., p. 315. In Paley, 8th ed. (1904), at p.' 47,7, note (z), it is 
 stated that since the Debtors Act, 1869, the Court has always re- 
 fused attachment for non-payment of costs on a Master's allocatur. 
 
 The practice in England is, if the taxed costs be not paid after 
 .a proper demand, a motion may be made to estreat the recog- 
 nizance upon an affidavit of service of the order to tax and the 
 Master's allocatur thereon and of demand on the defendant and 
 his bail. 
 
 Section 1096 is the only section of the Code which provides for 
 the remedyi by way of attachment on breach of recognizance. In 
 all other cases, the remedy is by estreating the recognizance, and 
 the wording of the old English statute is by no means clear. 
 
 Why in this enlightened age should we be relegated to a pro- 
 cedure so antiquated that it is no longer even followed in Eng- 
 land? With due deference, we think that the whole trouble seems 
 to be occasioned by the default and dilatoriness of our Judges in 
 not complying with the requirements of sec. 576 of the Code, and 
 making rules governing these proceedings. Nova Scotia is con- 
 tent to get along with rules that date as far back as 1891, before 
 the passing of the Criminal Code Act of 1892. The Ontario 
 Bench had a great awakening in 1908, but overlooked the enforce- 
 ment of recognizance. So far, the example of Ontario has been 
 followed in Alberta and Saskatchewan only. 
 
 British Columbia set a good example as far back as 1896, and 
 under Eule 43 no recognizance shall henceforth be forfeited or 
 estreated without the order of a Judge. Section 1096 of the Code 
 is permissive only, and points the way in default of any rule 
 
 C.O.P. S3
 
 514 NOVA SCOTIA RULES AS TO SECURITY FOR COSTS. 
 
 having been adopted providing for contempt proceedings. It is 
 respectfully suggested that there should be uniform rules adopted 
 throughout Canada, by the Courts of the several provinces, govern- 
 ing procedure in criminal matters as provided for by sec. 576. 
 
 No doubt, a change will be made in Nova Scotia in the near 
 future if the caustic remarks of RUSSELL, J., in R. v. Townsend, 
 bear fruit. 
 
 The Nova Scotia Rules were the subject of much consideration 
 in R. v. Townsend (No. 5), (1907) 13 C. C. C. 209. It was 
 decided in that case that Rule No. 28 operates as a general order 
 of the Court as to security for costs on certiorari under sec. 1126 
 of the Code, and a recognizance entered into under its provisions 
 may be enforced by attachment under sec. 1096 of the Code. 
 
 Also that sec. 1126 applies as well to a recognizance required 
 to be given on the application for the writ of certiorari as to a 
 recognizance given after return made to the writ, if upon the 
 former, the Court may order that the conviction be quashed on 
 return of the writ without further order. 
 
 In Quebec, it has been held that security for costs cannot be 
 ordered against the petitioner for a writ of certiorari in a criminal 
 case, owing to the fact that no general rule of Court exists or has 
 been made under the provisions of sec. 1126 of the Code in that 
 Province. Tierney v. Choquet, (1908) 13 C. C. 238. 
 
 The recognizance or deposit may be delivered to the justice 
 and sent to the Court with his return to the certiorari. R. v. 
 Cluff, 46 U. C. R, 565; R. v. Rolinet, 16 P. R, 49. 
 
 PRACTICE RELATING TO CERTIORARI. 
 
 The governing statute relating to the procedure necessary to 
 procure certiorari is the Imperial Act, 13 George II, ch. 18, sec. 5 
 (1739-40). This Act is in force in Ontario, Manitoba, Saskatche- 
 wan, Alberta, British Columbia, the Yukon and the North-West 
 Territories. 
 
 It is not in force in Nova Scotia and New Brunswick. British 
 Columbia, by the Certiorari Procedure Act. ch. 42, R. S. B. C. 
 (1897), adopts this section of the statute of Geo. II, and al>o 
 incorporates the provisions of 12 & 13 Viet. (Imp.), ch. 45, sec. 7. 
 
 Statute of IS George II, Ch. 18. 
 
 By the provisions of sec. 5 of the Act. no writ of certiorari shall 
 be granted, (1) unless the same be moved or applied for within six
 
 REQUIREMENTS OF 13 GEO. II, CH. 18, SEC. 5. 515 
 
 calendar months "next after such conviction, judgment, order or 
 other proceeding shall be so had or made;" (2) and unless it has 
 been duly proved upon oath that the said party or parties suing 
 for the same hath or have given six days' notice thereof in writing 
 to the justice or justices, or to two of them (if so many there 
 be) by and before whom such conviction, judgment, order or other 
 proceedings shall be so had or made, to the end that such justice 
 or justices may shew cause if he or they shall so think fit, against 
 the issuing or granting such certiorari. 
 
 The six calendar months are to be computed from the date of 
 the conviction if there has been no appeal. But, if an appeal has 
 been heard, then it is sufficient if the certiorari is moved for within 
 six calendar months after the order of sessions confirming the con- 
 viction. R. v. Boughey, 4 T. R. 281, R. v. Bloxam, 1 A. & E. 
 386, R. v. JJ. Middlesex, 5 A. & E.' 626, Re Kaye, 1 D. & R. 
 436. 
 
 The application for the writ should be made with reasonable 
 promptitude, although the Court will not necessarily require it to 
 be made within the term following the sessions. E. v. JJ. Breck- 
 nockshire, 42 L. J. M. C. 135. 
 
 In R^ v. HolyoTce, 21 C. C. 0. 422, the Court on appeal re- 
 fused to interfere with the discretion of a Judge in granting the 
 writ, though two terms of Court had intervened. 
 
 The application may be made on the last day of six months 
 and, where the applicant had left the affidavits with the Judge's 
 clerk on the last day but one of the six months, and had done all 
 he could for the purpose of making the application on the next 
 day, but, on account of the Judge not attending Chambers, the 
 application was not heard until after the six months had expired, 
 the writ was allowed to issue. E. v. Allen et al., 4 B. & S. 915, 
 33 L. J. M. C. 98. Paley, 8th ed., pp. 457-458. 
 
 Notice of Application for (Certiorari. 
 
 The six days' notice is imperative and a condition precedent 
 to the issuing of the writ. The justices can set up the defect in 
 answer to the rule nisi without making a substantive motion to 
 quash. R. v. Me Allan, (1880) 45 U. C. R. 402, 406. 
 
 The objection may be waived by delay and should be taken at 
 the first opportunity offered. R. v. Basingstol'e, (1849) 19 L. J. 
 M. C. 28, and see R. v. WhitaJcer, (1894) 24 0. R. 437.
 
 516 six DAYS' NOTICE OF THE APPLICATION. 
 
 The six days' notice must be given six days previous to the 
 application for the rule to shew cause and the six days are to be 
 reckoned one day. inclusively and the other exclusively. R. v. 
 Goodenough, 2 A. & E. 463. 
 
 The service of the rule to shew cause, though more than six 
 days be given upon it, is not a sufficient compliance with the Act. 
 R. v. JJ. Glamorganshire, 5 T. R. 279. 
 
 The notice may be of intention to move for a certiorari " in 
 six days from the giving of this notice or as soon as counsel can 
 be heard." R. v. Rose et dl., 3 D. & L. 359, and see In re Floun- 
 ders, 4 B. & A. 865. 
 
 By the English Crown Office Rules (1906), Nos. 19 and 20. 
 an ex parte motion for an order nisi may be made which, on prima 
 facie case being made out, is granted. The applicant must prove 
 by affidavit that he has served the order nisi six days before the 
 return day on the justices, in order that they may shew cause. 
 Rule 21. 
 
 The notice must precede the motion for a rule nisi and not 
 merely the motion for the rule absolute. Ex parte Roberts, 50 
 J. P. 567. 
 
 The absence of the affidavit of service is no ground for dis- 
 charging the rule nisi, though the writ will not be drawn up unless 
 an affidavit of service has been supplied. R. v. Northumberland, 
 JJ., 71J. P. 331. 
 
 Where a rule nisi has been served upon the convicting justices 
 more than six days before the date of its return, but six days' 
 notice of intention to apply) for certiorari had not been served 
 upon them, as required by 13 Geo. II, ch. 18, sec. 5, it was held 
 not to be a sufficient compliance with the statute. R. v. Plunkett, 
 (1895) 1 C. C. 0. 365. MR. JUSTICE DRAKE said, "as far as this 
 objection goes, a fresh application might be made by the prisoner." 
 
 It is not sufficient to state in the affidavit of service that the 
 notice was served on two of the justices present at the session, 
 but it should be alleged that it was served on two of the justices 
 present at the hearing by and before whom the conviction was 
 made, and it seems that no presumption arises on this head from 
 their names appearing in the caption of the order which it is 
 sought to remove. R. v. Cartworth, 5 Q. B. 201, and R. v. JJ. 
 Suffolk, 21 L. J. M. C. 169, R. v. Colchester, 20 L. J. M. C. 203. 
 
 A defect in this respect is ground for quashing the writ, and, 
 if the application fails from defective affidavits, it cannot in
 
 BY WHOM NOTICE TO BE GIVEN. 517 
 
 general be removed. R. v. Cartworth, supra, E. v. Manchester 
 Ey. Co., 8 A. & E. 413. 
 
 The want of, or any defect in, such previous notice is, there- 
 fore, a good cause to be shewn against making the rule absolute, 
 or, even if the rule had been absolute, and the writ issued, the 
 Court would supersede it, on the ground that no notice was given 
 previous to the moving for the rule nisi. E. v. Nichols, 5 T. E. 
 281n, E. v. Eattislaw, 5 Dowl. C. P. 539. 
 
 The notice should be given by the partyi suing out the writ 
 and that circumstance should appear upon the face of the motion 
 itself, for the object of it, stated by the statute, is to enable the 
 justices to shew cause against granting certiorari and they may 
 shew, for cause, that the party suing out the writ was a stranger 
 to the country, and not interested in the order. The justices, 
 therefore, ought to have their attention called to the name of the 
 party by the notice itself. R. v. JJ. Lancashire, 4 B. & Aid. 289. 
 
 The certiorari can only be issued at the instance of the party 
 giving notice to the justices. The notice must, therefore, state 
 the name of the party intending to apply for the writ and should 
 state who that party is, and on motion for the writ the Court 
 must be satisfied on the affidavits that the party so named is the 
 one by whom or on whose behalf the notice was given and the 
 application is made; the justices must also be identified with 
 those who are served. And, if there is more than one party 
 applying for it, the notice must be given by all, and, therefore, 
 when a notice was signed by only one churchwarden, although it 
 was stated to be " on behalf of the churchwardens and overseers of 
 E.," it was held not to be sufficient notice by the " party or parties 
 suing forth " the writ within the statute 13 Geo. II, ch. 18, sec. 5. 
 R. v. JJ. Cambridgeshire, 3 B. & A. 887. The above decision 
 was doubted in R. v. JJ. Kent, 40 L. J. M. C. 76. 
 
 None of these restrictions attach upon application on behalf 
 of the prosecution or upon one made by the Attorney-G-eneral 
 officially on account of a defendant. 
 
 Where from special circumstances the Court or a Judge may 
 be of opinion that the writ should issue forthwith, the order may 
 be made absolute, or an order may be made in the first instance 
 either ex parte or otherwise as the Court or Judge may direct. 
 Crown Office Eules.
 
 518 AFFIDAVITS VEEIFYING PEOCEEDINGS. 
 
 ONTARIO RULES. 
 
 By sec. 63 (1), the proceedings shall be by a notice of motion 
 in the first instance instead of by certiorari or by rule or order 
 nisi. 
 
 Sub-sec. (2). The notice shall be served at least six days 
 before the return day upon the magistrate, etc., making the con- 
 viction or order, and also upon the prosecutor or informant (if 
 any) and upon the clerk of the peace, if the proceedings have been 
 returned to his office, and it shall specify the objections to be 
 raised. On these notices shall be endorsed a copy of sub-sec. (4) 
 and the further notice prescribed by sub-sec. (3). 
 
 Affidavits Verifying Proceedings. 
 
 The Crown Office Eules and the British Columbia Eules each 
 provide that "no order for the issuing of a writ of certiorari to 
 remove any order, conviction, or inquisition, or record or writ of 
 habeas corpus ad subjiciendum, is to be granted where the validity 
 of any warrant, commitment, order, conviction or record shall be 
 questioned, unless, at the time of moving, a copy of any such war- 
 rant, commitment, order, conviction, inquisition or record verified 
 by, affidavit be produced and handed to the officer of the Court 
 before the motion be made, or the absence thereof accounted for 
 to the satisfaction of the Court. 
 
 According to the Nova Scotia Rules, a copy of the conviction 
 to be attached must be produced verified by affidavit. 
 
 In New Brunswick, this is also required : see Ex parte Emmer- 
 son, (1895) 1 C. O. C. 156, 33 N. B. R. 425. 
 
 The application for the certiorari must be supported by affi- 
 davits shewing the ground on which it is sought. 
 
 The affidavit should be entitled in the Court to which the 
 application is made and not in the Court below. 
 
 The want of this affidavit has been held to be fatal. R. v. 
 Stevens, 31 N. S. R. 125, R. \. Bigelow, 31 N. S. R. 436. 
 
 Copies of the information, evidence taken, justice's minute of 
 adjudication, formal record of the conviction, the exhibits and all 
 other papers connected with the proceedings, should be made ex- 
 hibits to the affidavit of the applicant and verified as being true 
 copies of the originals.
 
 BETUKN TO THE WEIT BY JUSTICES. 519 
 
 If it is impossible to secure a copy of the proceedings or any 
 part thereof, the affidavit should state this fact and disclose what 
 steps were taken to secure the same, and the reasons why any 
 were not obtained. 
 
 The writ is of no effect unless delivered before the time of its 
 return has 'expired. From the time of its delivery, the writ super- 
 sedes the authority of the magistrate below, and all subsequent 
 proceedings by them taken are void. The magistrate is also liable 
 for contempt, and to attachment and fine. The magistrate, upon 
 receiving certiorari, should yield obedience to it by entering all 
 proceedings comprehended in its mandate whether taken before or 
 after the date of the writ. 
 
 Return of the Writ or Order. 
 
 In Ontario, as we have seen, on the notice of motion is to be 
 endorsed a notice in accordance with the form given in sub-sec. 
 (3). This notice requires the justice to make the return in the 
 manner therein specified. Sub-section (4) provides for the certi- 
 ficate of return to be endorsed on the notice served upon the 
 justice or other officer and the form of the return is set out. It is 
 also declared in sub-sec. (5) that the certificate shall have the 
 same effect as a return to a writ of certiorari. 
 
 Under the Crown Eules and the old practice, the justice en- 
 dorsed the following on the back of the writ : 
 
 " The execution of the writ appears by the schedule hereunto 
 annexed. The answer of A. B., Esquire, one of the keepers of the 
 peace and justice within mentioned." 
 
 This is signed by the justice or person making the return. 
 The record and documents are set out in a schedule annexed to 
 the writ. 
 
 The return must certify the record itself, that is, all original 
 documents ; it will be bad if a copy of the record is only mentioned 
 or the tenor thereof. 
 
 The return should be under the seal of the justice, and he 
 should add his description, otherwise it will be sent back to him 
 for amendment. 
 
 If the justice has transmitted the conviction to the clerk of 
 the peace, he must, nevertheless, make a return certifying this 
 fact, and the regular return of the conviction will be made by the 
 latter.
 
 520 PBOCEEDINGS ON AFFIRMANCE OF CONVICTION. 
 
 The writ and certificate and all papers and documents included 
 in the return should be sent or delivered to the proper officer of 
 the Court designated to receive them. 
 
 If a conviction has not already been made up, the justice may 
 draw up a formal conviction and return it with the writ. 
 
 If the record returned is for any reason not well removed by 
 reason of a variance between the return and the writ or the return 
 is otherwise imperfect, then nothing is before the Court upon 
 which it can proceed. In that case, therefore, the Court will 
 quash the return and award a new writ. Palmer v. Forsyfh, 4 
 B. & C. 401. 
 
 PROCEEDINGS ON EEFUSAL TO QUASH CONVICTION. 
 
 1127. If a motion or rule to quash a conviction, order or other pro- 
 ceeding is refused or discharged, it shall not be necessary to issue a writ 
 of procedendo, but the order of the Court refusing or discharging the appli- 
 cation shall be a sufficient authority for the registrar or other officer of the 
 Court forthwith to return the conviction, ' order or proceeding to the Court 
 or justice from which or whom they were removed, and for proceedings to 
 be taken thereon for the enforcement thereof, as if a procedendo had issued, 
 which shall forthwith be done. 
 
 1128. No order, conviction or other proceeding made by any justice 
 or stipendiary magistrate shall be quashed or set aside, and no defendant 
 shall be discharged, by reason of any objection that evidence has not been 
 given of a proclamation or 'order of the Governor in Council, or of any rules, 
 regulations, or by-laws made by the Governor in Council in pursuance of 
 a statute of Canada, or of the publication of such proclamation, order, 
 rules, regulations or by-laws in the Canada Gazette. 
 
 2. Such proclamation, order, rules, regulations and by-laws and the 
 publication thereof shall be judicially noticed. 
 
 By sec. 1127, the order of the Court refusing or discharging 
 the application for certiorari is a sufficient authority in itself 
 without other process, for the registrar or other officer of the 
 Court forthwith to return the conviction, order or proceeding 
 which has been removed into the Superior Court, to the Court or 
 Justice from which or whom they were removed, so that proceed- 
 ings may be taken for the enforcement thereof, which shall be 
 forthwith done. Two things are emphasized here, first, that the 
 officer of the superior Court shall make the return forthwith, and 
 secondly, that the proceedings for the enforcement by the justice 
 of the conviction or order shall be done forthwith. 
 
 This section only: applies where a conviction or order has been 
 affirmed and not where it has been quashed. When a conviction 
 has been quashed, the record must remain in the superior Court 
 and cannot be sent back to the inferior Court.
 
 DEFECTS IN FORM NOT FATAL. 521 
 
 Where a conviction has been removed by certiorari, together 
 with the information and proceedings therein, and the conviction 
 was quashed, the information by a mistaken order of the Court 
 was taken off the files and returned to the justice who, thereupon, 
 issued a fresh summons. Held, that the information when re- 
 moved into the superior Court became part of the records of that 
 Court and cannot be returned to the justice when the conviction 
 has been quashedy and prohibition was granted to prevent the 
 justice proceeding under the second summons. An order for the 
 return of any proceedings to the convicting justice can only be 
 made under the authority of sec. 895 (now 1127) and then only 
 in cases where formerly a procedendo would have issued upon the 
 conviction being confirmed and not where the conviction is 
 quashed. R. v. Zickridc, (1897) 5 C. C. C. 380, 11 M. B, 452. 
 And see R. v. Harrison, (1907) 15 0. L. B. 231. 
 
 CONVICTION NOT TO BE SET ASIDE FOE DEFECT IN FORM. 
 
 1129. Whenever it appears oy any conviction made by a justice or 
 stipendiary magistrate that the defendant has appeared and pleaded, and 
 the merits have been tried, and the defendant has not appealed against the 
 conviction, where an appeal is allowed, or, if appealed against, the convic- 
 tion has been affirmed, such conviction shall not afterwards be set aside or 
 vacated in consequence of any defect of form whatever, but the construc- 
 tion shall be such a fair and liberal construction as will be agreeable to the 
 justice of the case. 
 
 See R. v. Hostyn, (1905) 9 C. C. C. 138. 
 
 This section speaks of a conviction made by a justice or 
 stipendiary magistrate, but quaere, whether it would not be con- 
 strued to include convictions by police magistrates and other simi- 
 lar tribunals? 
 
 Where the depositions of the witnesses had not been taken 
 down in writing, it was held, on certiorari proceedings to quash 
 the conviction, that the omission to comply with the provisions of 
 the Code in this respect is not a defect of form mentioned in sec. 
 896 (now 1129) of the Code. R. v. Lacroix, (1907) 12 C. C, C. 
 297, and see R. v. McGregor, (1905) 10 C. C. C. 313, and De- 
 nault v. Robida, (1894) 8 C. C. C. 501. 
 
 1130. No conviction, sentence or proceeding under Part XVI shall 
 be quashed for want of form ; and no warrant of commitment upon a con- 
 viction under the said Part shall be held void by reason of any defect there- 
 in, if it is therein alleged that the offender has been convicted and there is 
 a good and valid conviction to sustain the same. 
 
 See R. v. Gibson, (1898) 2 C. C. C. 302; R. v. Burtress, 
 (1900) 3 C. C. C. 536. This section of the Code was discussed
 
 522 ONTARIO CROWN RULES GOVERNING CERTIORABI. 
 
 in the last chapter, and reference can be had to the comment there 
 made, and the above cases which are noted supra. 
 
 CROWN BULES IN DIFFERENT PROVINCES WHERE THEY HAVE 
 ADOPTED RULES. 
 
 Crown Rules in Ontario Governing Certiorari Practice. 
 
 By sec. 63 of the Judicature Act, ch. 56 of R. S. 0. 1914, the 
 following rules are in force: 
 
 63 (1). Where it is desired to move to quash a conviction, 
 order, warrant or inquisition, the proceeding shall be by motion 
 in the first instance, instead of by certiorari, rule or order nisi. 
 
 (2). Notice of the motion shall be served at least six days 
 before the return day thereof, upon the magistrate making the 
 conviction or order, or issuing the warrant, or the coroner making 
 the inquisition, and also upon the prosecutor or informant (if 
 any), and upon the clerk of the peace, if the proceedings have been 
 returned to his office, and the notice shall specify the objections 
 intended to be raised. 
 
 (3). Upon the notice of motion shall be indorsed a copy of 
 sub-section (4) and a notice in the following form, addressed to 
 the magistrate, coroner or clerk of the peace, as the case may be : 
 
 "You are hereby required forthwith, after service hereof, to 
 return to the central office at Osgoode Hall, Toronto, the convic- 
 tion (or as the case may be) herein referred to, together with the 
 information and evidence, if any, and all things touching the 
 matter as fully and entirely as they remain in your custody, to- 
 gether with this notice." 
 
 Dated 
 
 To A. B. 
 
 Magistrate (or as the case may be.) 
 C. D., 
 
 Solicitor for the applicant." 
 
 (4). Upon receiving the notice so indorsed, the magistrate, 
 coroner or clerk of the peace, shall return forthwith to the central 
 office, the conviction, order, warrant or inquisition, and the infor- 
 mation and evidence, if any, and all things touching the matter, 
 and the notice served upon him with a certificate endorsed upon it 
 in the following form :
 
 ONTABIO CROWN RULES GOVERNING CERTIORARI. 523 
 
 " Pursuant to the within notice I herewith return to this 
 Honourable Court the following papers and documents, that is to 
 say: 
 
 " (1) The conviction (or as the case may be) ; 
 
 " (2) The information and the warrant issued thereon; 
 
 " (3) The evidence taken at the hearing; 
 
 " (4) (Any other papers or documents touching the matter). 
 
 "And I hereby certify to this Honourable Court that I have 
 above truly set forth all the papers and documents in my custody 
 or power relating to the matter set forth in this notice of motion.''' 
 
 (A copy of this rule should be indorsed upon the notice of 
 motion served upon the magistrate, coroner, or clerk of the peace, 
 from whom the return is required.) 
 
 ,(5) The certificate shall have the same effect as a return 
 to a writ of certiorari, or to an order under the Eules. 
 
 (6) The notice shall be returnable before a Judge of the 
 Higli Court Division sitting in Chambers. 
 
 (7) The motion shall not be entertained, 
 
 (a) Unless the return day thereof is within six months after 
 the conviction, order, warrant or inquisition, and 
 
 (b) The applicant is shewn to have entered into a recog- 
 nizance with one or more sufficient sureties in the sum of $100 
 before a magistrate of the county within which the conviction or 
 order or inquisition was made, or the warrant was issued, or be- 
 fore a Judge of the County Court of that county, or before a 
 Judge of the High Court Division, conditional that the appli- 
 cant will prosecute the application at his own costs and charges, 
 without any wilful or affected delay, and that he will pay 
 the person in whose favour the conviction, order, or other pro- 
 ceeding is affirmed his full costs and charges to be taxed accord- 
 ing to the course of the Court, in case the conviction, order or other 
 proceeding is affirmed or has paid into Court the like sum as 
 security that he will do so. 
 
 (8) The recognizance with an affidavit of its due execution 
 shall be filed with the clerk in Chambers. 
 
 (9) The Judge shall have all the powers of the Court in the 
 like matters, and may order the production of papers and docu- 
 ments as he may deem necessary. 
 
 (10) No appeal from the order of the Judge shall lie unless 
 leave is granted by a Judge of the High Court Division.
 
 524 NOVA SCOTIA AND BKITISH COLUMBIA RULES. 
 
 Nova Scotia Grown Rules. 
 
 The Nova Scotia Crown Rules 27 to 37 relate to the practice 
 to be observed in respect to the writ of certiorari. 
 
 (1) A four days' notice of the application must be given to 
 the opposite party, and also to the magistrate in order that either 
 may shew cause. 
 
 (2) A recognizance with two sureties in the sum of $200 must 
 first be filed to respond the judgment, and additional security may 
 be ordered. 
 
 (3) Such writ shall be applied for within six months after a 
 conviction. 
 
 (4) No order for a certiorari shall be made unless a copy 
 of the conviction to be attacked is produced, verified by affidavit. 
 
 (5) No objection on account of any mistake or omission in 
 a judgment or order brought up by writ shall be allowed unless 
 the omission or mistake was specified in the notice of motion for 
 the writ. 
 
 In Nova Scotia it was held that the requirements of the rule 
 as to filing affidavits of justification are imperative, and that 
 leave to file such affidavits pending the motion to quash cannot 
 be granted. Mclsaac v. McNeil, 28 N. S. E. 424. 
 
 British Columbia Rules. 
 
 The Crown Eules of British Columbia, 1896, relating to certi- 
 orari are as follows: 
 
 (2) Every applicant for a writ of certiorari at the instance of 
 any person, other than the Attorney-General on behalf of the 
 Crown, shall be made to a Judge of the Supreme Court by sum- 
 mons to shew cause; unless, in the opinion of the Judge, the writ 
 should issue forthwith, in which case the order may be made abso- 
 lute ; or an order may be made in the first instance either ex parte, 
 or otherwise, as the Judge may direct. 
 
 (3) Xo writ of certiorari shall be granted, issued, or allowed, 
 to remove any judgment, conviction, order, or other proceedings 
 had or made before any justice or justices of the peace, unless 
 such writ be applied for within six calender months after such 
 judgment, conviction, order, or other proceeding shall be so had
 
 BRITISH COLUMBIA RULES CONTINUED. 525 
 
 or made, and unless it be proved by affidavit that the party suing 
 forth the same has given six days' notice thereof in writing to 
 the justice or justices, or to two of them if more than one, by 
 and before whom such judgment, order, conviction, or other pro- 
 ceedings shall be so had or made, in order that such justice or 
 justices, or the parties therein concerned, may shew cause, if he or 
 they shall so think fit, against the party issuing or allowing such 
 writ of certiorari. The writ shall be in the Form No. 9, Appen- 
 dix J. of the " Supreme Court Eules, 1890." 
 
 (4) No order for the issuing of a writ of certiorari to remove 
 any order, conviction or inquisition, or record, or writ of habeas 
 corpus ad subjiciendum, shall be granted where the validity of any 
 warrant, commitment, order, conviction, inquisition, or record, 
 shall be questioned, unless, at the time of moving, a copy of any 
 such warrant, commitment, order, conviction, inquisition or record, 
 verified by affidavit, be produced and handed to the officer of the 
 Court before the motion be made, or the absence thereof accounted 
 for to the satisfaction of the Court. 
 
 (5) No writ of certiorari shall be allowed to remove any judg- 
 ment, order, or conviction given or made by justices, unless the 
 party (other than the Attorney-General acting on behalf of the 
 Crown) prosecuting such certiorari, before the allowance thereof, 
 shall enter into a recognizance with one or more sufficient sureties 
 before one or more justices, or before any Judge of the Supreme 
 Court or County Court, in the sum of $100, with condition to 
 prosecute the same, at his own costs and charges,, with effect, 
 without any wilful or affected delay, and to pay the party in whose 
 favour or for whose benefit such judgment, order, or conviction 
 shall have been given or made, within one month after the said 
 judgment, order or conviction shall be confirmed, his full costs 
 and charges to be taxed according to the practice of the Court; 
 and, in case the party prosecuting such certiorari shall not enter 
 into such recognizance, or shall not perform the conditions afore- 
 said, it shall be lawful for the said justices to proceed and make 
 such further order for the benefit of the party for whom such 
 judgment shall be given, in such manner, as if no certiorari had 
 been granted. 
 
 (6) Every such recognizance with affidavit of justification, 
 and of due execution, shall be filed with the registrar of the Court 
 before the issue of any writ of certiorari. 
 
 (7) When cause is shewn against an order nisi for a certiorari 
 to remove any judgment, order or conviction upon which no special
 
 526 SASKATCHEWAN CROWN PRACTICE RULES. 
 
 case has been stated, given, or made by justices of the peace 
 for the purpose of quashing such judgment, order or conviction, 
 the Court, or a Judge thereof, if it shall think fit, may make it 
 part of the order absolute for the certiorari that the judgment, 
 order, or conviction shall be quashed on return without further 
 order, and in such case no such recognizance as is required by 
 the last preceding rule shall be necessary, and a memorandum to 
 that effect shall be indorsed by the proper officer upon the issuing 
 of the writ of certiorari. 
 
 (8) No objection on account of any omission or mistake in any 
 judgment or order of any justice of the peace or Court of summary 
 jurisdiction brought up upon a return of a writ of certiorari, and 
 filed in the Supreme Court, shall be allowed, unless such omission 
 or mistake shall have been specified in the order for issuing the 
 certiorari. 
 
 SASKATCHEWAN CROWN PRACTICE RULES. 
 Custody of Papers. 
 
 1. The registrar of the supreme court en bane shall have the 
 care and custody of the records and proceedings in respect to 
 proceedings arising by way of certiorari, quo warranto, injunction 
 in the nature of a quo warranto, mandamus, prohibition or habeas 
 corpus. C. P. E. 1. 
 
 Certiorari. 
 
 2. Subject to the provisions of this rule being dispensed with, 
 as hereinafter provided, no motion to quash any conviction, order 
 or other proceeding by, or before, a justice or justices of the peace, 
 and brought before the supreme court of Saskatchewan, or any 
 judge thereof, by certiorari, shall be entertained by such court or 
 judge, unless the defendant is shown to have entered into recog- 
 nisance in $200, with one or more sufficient sureties, before a 
 justice of the peace and deposited the same with the registrar; or 
 to have made a deposit with the said registrar of $100, in either 
 case, with a condition to prosecute such motion and writ of certi- 
 orari, at his own costs and charges, with effect and without delay, 
 and if ordered to do so, to pay to the person in whose favour the 
 conviction, order or other proceeding is affirmed his full costs and 
 charges, to be taxed, where such conviction, order, or proceeding 
 is affirmed. C. P. B. 2.
 
 SASKATCHEWAN RULES CONTINUED. 527 
 
 3. Every application for a writ of certiorari, at the instance 
 of any other person than the attorney general on behalf of the 
 Crown, shall be made to a judge by notice of motion or to the 
 court en bane for an order nisi, to show cause why the writ should 
 not issue. C. P. E. Am. 1. 
 
 4. Such notice or order nisi shall be served upon the justice or 
 one of the justices who made the conviction or order, and upon 
 such other person or persons as the court or a judge shall, upon 
 such application, direct. C. P. R. Am. 2. 
 
 5. Where, from any cause, the court or a judge is on such 
 application of opinion that the validity of the conviction, or order, 
 can be dealt with on the return of the notice of motion or order 
 nisi, the notice or order nisi shall also be to show cause why the 
 conviction or order should not be quashed, but in this case the 
 private prosecutor shall be one of the persons to be served, and 
 the judge or court may, in such case, dispense with the giving of 
 security required by rule 2. C 1 . P. E. Am. 3. 
 
 6. No application for a certiorari shall be made after the 
 expiration of six months from the date of the conviction or order. 
 C. P. E. 5. 
 
 7. On an application for a certiorari to remove a judgment, 
 conviction or order, the court or a judge may order such judg- 
 ment, conviction or order to be quashed, without the actual issue of 
 the writ of certiorari ; and, if such person is in custody under any 
 warrant or other process issued on such judgment, conviction or 
 order, the court or judge may, in granting such order for a writ 
 of certiorari or to quash such judgment, conviction or order, at 
 any time after said order is granted, order him to be discharged 
 from custody absolutely, or on his giving such security, as the court 
 or judge shall direct, that if the said judgment, conviction or 
 order is confirmed, or the application for the writ of certiorari 
 is dismissed, or the writ of certiorari is quashed, he will comply 
 with the provisions of the judgment, conviction or order and pay 
 the fine or penalty imposed, and in case of imprisonment without 
 fine, that he will forthwith surrender himself into the same custody 
 and undergo the remainder of his imprisonment, notwithstanding 
 the term limited for his imprisonment shall have expired. If the 
 recognisance shall be forfeited, a warrant for the apprehension of 
 the defendant may be granted by a judge, which shall authorise 
 his arrest and imprisonment for the unexpired term. N". S. 37.
 
 528 SASKATCHEWAN RULES CONTINUED. 
 
 Habeas Corpus. 
 
 31. If a writ of habeas corpus be disobeyed by the person to 
 whom it is directed, application ma/ be made to the court or a 
 judge, on an affidavit <5f service and of such disobedience for an 
 attachment for contempt. C. P. K. 30. 
 
 32TThe return of the writ of habeas corpus shall contain a 
 copy of all the causes of the prisoner's detention indorsed on the 
 writ, or on a separate schedule annexed to it. C. P. E. 31. 
 
 33. The return may be amended, or another substituted for it, 
 byi leave of the court or a judge. C. P. E. 32. 
 
 34. When a return to the writ of habeas corpus is made, the 
 return shall first be made and motion then made for discharging 
 or remanding the prisoner, or amending or quashing the return. 
 C. P. E. 33. 
 
 35. On the argument of a motion for a writ of habeas corpus, 
 the court or a judge may, in their or his discretion, direct an 
 order to be drawn up for the prisoner's discharge, instead of 
 waiting for the return of the writ, which order shall be a suffi- 
 cient warrant for any gaoler or constable, or other person, for his 
 discharge. C. P. E. 34. 
 
 General. 
 
 36. Application for a prerogative writ of mandamus, for a 
 writ of certiorari, or order to quash proceedings without the actual 
 issue of the writ, for a writ of habeas corpus, for prohibition, or 
 for an information in the nature of a quo warranto, may be made 
 either to a judge in chambers or in court, or to the court en "bane. 
 The court or a judge may, if it be deemed proper, grant ex parte 
 an order for the immediate issue of a writ of habeas corpus. C. 
 P. E. 35. 
 
 37. Any writ may be served, according to the rules relating 
 to the service of writs of summons, under the rules of the supreme 
 court. C. P. E. 36. 
 
 38. It shall not be necessary to serve the original of any writ, 
 judgment, order or other proceeding, but the party served with a 
 copy thereof shall be entitled to inspect the original at the time 
 of service, if he so demand. C. P. E. 37. 
 
 39. All proceedings under these rules shall be intituled in 
 the supreme court and shall be styled in the matter to which
 
 ORDINARY RULES OF COURT APPLICABLE. 529 
 
 they relate, so as to show the name of the applicant as inform- 
 ant, relator, plaintiff, private prosecutor, or otherwise, accord- 
 ing to the nature of the case and the name of the defendant, 
 respondent or party against whom the application is made. C. 
 P. R, 38. 
 
 40. In all proceedings under these rules the costs shall be 
 in the discretion of the court or judge, who shall have full 
 power to order either the applicant or the party against whom 
 the application is made, or anyi other party to the proceedings, 
 to pay such costs, or any part thereof, according to the result. 
 C. P. R. 39. 
 
 41. The proceedings for attachment for contempt, for dis- 
 obedience of any writ, judgment, or order issued or made under 
 these rules, shall conform as nearly as may be to proceedings for 
 contempt, for disobedience of any writ, judgment or order in a 
 civil action. C. P. R, 40. 
 
 Application of Rules of Supreme Court. 
 
 44. The following rules and orders of the supreme court with 
 respect to civil actions and proceedings in such court shall, as 
 far as applicable, apply to all proceedings in relation to Crown 
 matters, and wherever by any of such rules, it is provided that 
 any act shall be done by, or proceeding held by, or before the 
 local registrar, such act shall be done by, or proceeding held by, 
 or before the registrar: 
 
 ORDER V (Service of other proceedings) 
 
 RULE 73 (Constitutional questions) 
 
 ORDER XI except rules 147, 152, 
 
 and 168 (Pleading generally) 
 
 ORDER XII except rule 172. .. .(Statement of claim) 
 ORDER XIII rules 176, 177, 178, 
 
 179 and 190 (Defence and counterclaim) 
 
 ORDER XIV (Reply and close of pleadings) 
 
 ORDER XVI (Matters arising pending the 
 
 action) 
 
 ORDER XVII (Raising points of law or) 
 
 ORDER XXI (Amendment) 
 
 ORDER XXII (Discovery of documents) 
 
 c.c.p. 34
 
 530 FEES AND FORMS. 
 
 ORDER XXIII except rules 281 
 and 305 (Examination for discovery) 
 
 ORDER XXIV (Admissions) 
 
 ORDER XXVI (Special case) 
 
 ORDER XXVII except rule 355. (Trial) 
 
 ORDER XXVIII (Evidence) 
 
 ORDER XXX (Affidavits and depositions) 
 
 ORDER XXXII (Judgments and entry of judg- 
 ment) 
 
 ORDER XXXIII (Execution) 
 
 ORDER XXXIV (Discovery in aid of execution) 
 
 ORDER XL. ! (Interpleader) 
 
 ORDER XLII. . , (Motions and applications) 
 
 ORDER XL/Ill (Applications in chambers gen- 
 erally) 
 
 ORDER XLIV (Court en lane} 
 
 ORDER XLV except rule 691. . .(Sittings and vacation) 
 
 ORDER XLVI (Time) 
 
 ORDER XLVII except rules 721 
 
 724, 725, 726 and 727 (III. Taxation and Tariff of 
 
 Costs.) 
 
 ORDER XL/VIII (Service of orders, etc.) 
 
 ORDER XLIX (Non-compliance and irregulari- 
 ties) 
 
 C. P. R. 41. 
 
 45. The fees, taxable to the registrar for services on the 
 crown practice side of the court, shall be the fees specified in items 
 32 to 40 of schedule 2 of the tariff, and where no fees are speci- 
 fied by such items, such fees as are taxable to the local registrar 
 under the tariff for similar services, except when the service is 
 performed in connection with the court en lane, when the fees 
 taxable shall be those taxable to the registrar. 
 
 46. "Where no other provision is made by these rules, the 
 procedure and practice shall, as far as may be, be regulated by 
 the crown office rules for the time being in force in England. 
 
 Forms. 
 
 47. The forms for the time being in use in England under 
 the said crown office rules where applicable, and. where not ap- 
 plicable, forms of the like character, as near as may bo. shall
 
 EULES FOR CASES STATED BY MAGISTRATES. 531 
 
 be used in all 'proceedings except where otherwise ordered by 
 these rules. C. P. R. 42. 
 
 48. These rules may be cited as " The crown practice rules." 
 
 RULES FOR CASES STATED UNDER SECTION 761 OF THE CRIMINAL 
 
 CODE. 
 
 1. An application to a justice of the peace to state and sign 
 a case, under said section 761, shall be in writing, and be de- 
 livered to such justice or left with some person for him at his 
 place of abode, within seven clear days from the date of the pro- 
 ceeding questioned. 
 
 2. Within one calendar month, after such application has 
 been so delivered or left for him, the justice shall state and sign 
 and deliver to the appellant a case setting forth: 
 
 (a) The substance of the information or complaint; 
 (&) The names of the prosecutor (or complainant) and de- 
 fendant ; 
 
 (c) The date of the proceeding questioned; 
 
 (d) The facts of the case; 
 
 (e) The conviction, order, determination or other proceed- 
 ing questioned; 
 
 (/) The grounds on which the same is questioned, which 
 
 must be confined to the grounds raised at the trial; 
 (g) The grounds upon which the justice supports the pro- 
 ceeding questioned, if the justice sees fit to state any. 
 
 3. The justice shall not deliver said case until after the ap- 
 pellant shall have entered into a recognisance, and paid the fees 
 as provided by section 762 of the Code. 
 
 4. In the event of the justice declining, refusing or omitting 
 to state a case, the appellant may apply to the court en ~banc for 
 a rule as provided by section 764 of the Code. 
 
 (a) Or the appellant may in such event apply o a judge 
 sitting in chambers, upon affidavit of the facts, for a 
 summons calling upon the justice and the respondent to 
 show cause why such case should not be stated; and the 
 judge in chambers may, on the return thereof, make 
 such order, with or without payment of costs, as to him 
 seems meet ; and the justice being served with such order 
 shall, if ordered to do so, state a case upon the appellant 
 entering into such recognisance and paying the fees to 
 the justice, as provided in said section 762.
 
 532 SASKATCHEWAN RULES FOR CASES STATED. 
 
 5. Within ten days after the receipt by the appellant of a case 
 stated By a justice, he shall file or cause it to be filed with the re- 
 gistrar of the supreme court en bane. 
 
 6. Upon sufficient cause for the delay being shown, the court 
 or judge, as the case may be, may hear and determine the matter, 
 although the case was not filed within said ten days. 
 
 7. The appellant shall state, in the notice of appeal given to 
 the other party, to the proceeding as required by subsection 2 of 
 section 761 of the Code, as amended by chapter 9 of 8 and 9 Ed- 
 ward VII (1909), whether the appeal is to the court en bane 
 or to a judge in chambers, and if to the court en bane the date of 
 the sittings of such court at which it will be heard. 
 
 8. When the case stated has been delivered to the registrar for 
 hearing byi the court en bane, the same shall be heard at the next 
 sittings of such court, which shall sit no sooner than fourteen 
 days after the delivery of the case stated to the registrar, and the 
 appellant shall give to the respondent ten days' notice in writing 
 of the time and place of hearing the appeal. 
 
 9. When the case has been delivered to the registrar for hear- 
 ing by a judge in chambers, the appellant shall, within five days 
 after such delivery, apply to the judge in chambers to fix a time 
 and place for the hearing of the appeal, and the judge shall 
 thereupon appoint a time and place for such hearing, and a copy 
 of such appointment shall be served upon the opposite party, or 
 as the judge may direct: 
 
 Provided that if such application be not made within said 
 period of five days, the judge may, upon sufficient cause for the 
 delay being shown, fix such time and place, notwithstanding that 
 said period may have elapsed. 
 
 10. If the court or a judge order the case to be sent back for 
 amendment, the same shall be forthwith amended by the justice, 
 in accordance with any directions given by the court or judge, 
 and transmitted when amended to the registrar. 
 
 11. An order of a judge, by whom a case stated has been 
 heard, shall have the same effect as an order made by the court 
 under section 765 of the Code, and the provisions of section 767 
 of the Code shall apply, where the decision is that of a judge, in 
 the same way as in case of a decision by the court, and anyi order 
 of the judge may be enforced by process issued out of the court. 
 
 12. In so far as these rules do not expressly make provision, 
 whenever a case stated is brought before a judge as hereinbefore
 
 CROWN PRACTICE IN ALBERTA. 533 
 
 provided, the provisions of sections 761 to 767, both inclusive, 
 and of any amendments and additions thereto as to such a case 
 when before the court shall, mutatis mutandis, be applicable to 
 the proceedings on a case before the judge. 
 
 13. A justice before, or immediately after, delivering a case 
 stated to the appellant shall transmit the recognisance to the re- 
 gistrar. 
 
 14. Slight deviation from strict 'compliance with these rules 
 shall not invalidate any proceeding or thing, if the court or judge 
 sees fit to allow the same, either with or without requiring the 
 same to be corrected. 
 
 CROWN PRACTICE IN ALBERTA. 
 
 Practice and Procedure of the Supreme Court in Relation to Cer- 
 tiorari, Habeas Corpus and Prohibition, in Criminal Matters 
 and Costs m Such Matters. 
 
 Quashing a Conviction, Order, etc. 
 
 1. In all cases in which it is desired to move to quash a con- 
 viction, order, warrant or inquisition, the proceeding shall be 
 by notice of motion in the first instance instead of by certiorari 
 or byi rule or by order nisi. [0. 1289.] 
 
 2. The notice of motion unless otherwise directed by a Judge 
 shall be served, at least seven days before the return day thereof, 
 upon the magistrate, justice or justices making the conviction or 
 order or issuing the warrant or the coroner making the inquisi- 
 tion, and also upon the prosecutor or informant, and upon the 
 Attorney-General, and upon the officer to whom, or upon the 
 Clerk of the office to which, the proceedings are required by law 
 to be transmitted, and it shall specify the objections intended to 
 be raised. [0. 1290.] 
 
 3. Upon the notice of motion shall be endorsed a notice in 
 the following form addressed to the magistrate, justice or jus- 
 tices, coroner, or officer or Clerk, as the case may be. 
 
 "You are hereby required forthwith after service hereof to 
 
 return to the Clerk of the Supreme Court at 
 
 (as the case may be) the conviction (or , 
 
 as the case may be), herein referred to together with the inform- 
 ation and evidence, if any, and all things touching the matter as
 
 534 ALBERTA CROWN RULES CONTINUED. 
 
 fully and entirely as they remain in your custody, together with 
 this notice. 
 
 "Date 
 
 To A. B., Magistrate at (or as the 
 
 case may be). 
 
 (Signed) ' C. D. 
 
 Solicitor for the Applicant." 
 
 4^ Upon receiving the notice so endorsed the magistrate, jus 
 tice or justices, coroner, officer or Clerk, shall return forthwith 
 to the office mentioned therein the conviction, order, warrant or 
 inquisition together with the information and evidence, if any, 
 and all things touching the matter and the notice served upon 
 him with a certificate endorsed thereon in the following form: 
 
 " Pursuant to the accompanying notice I herewith return to 
 this honorable Court the following papers and documents, that 
 is to say: 
 
 (1) The conviction (or as the case may be) ; 
 
 (2) The information and the warrant issued thereon; 
 
 (3) The evidence taken at the hearing; 
 
 (4) (All other papers or documents touching the matter.) 
 
 "And I herebyi certify to this honorable Court that I have 
 above truly set forth all the papers and documents in my 'custody 
 and power relating to the matter set forth in the said notice of 
 motion." 
 
 (2) If the proceedings have been transmitted as required by 
 law by the magistrate, justice or justices or coroner, to the pro- 
 per officer, he shall in lieu of the certificate above set out certify 
 to the fact of such transmission together with the date thereof. 
 
 (3) If the proceedings have not been received by the officer 
 to whom or the Clerk of the office to which the same are by law 
 required to be transmitted, such officer or Clerk shall return a 
 certificate of the fact in lieu of the 'certificate above set out. 
 
 (4) A copy of this Rule shall appear upon or be annexed to 
 the notice of motion served upon the magistrate, justice or jus- 
 tices, coroner, Clerk or officer from whom the return is required. 
 [0. 1292.] 
 
 5. The certificate shall have the same effect as a return to a 
 writ of certiorari. [0. 1293.]
 
 RULES OF GENERAL APPLICATION. 535 
 
 6. The motion shall not be entertained unless the return day 
 thereof be within six months after the conviction, order, war- 
 rant or inquisition and unless the applicant, if not the Attorney- 
 General, is shown to have deposited with the Clerk of the Court 
 to whom the certificate is required to be returned as security 
 for costs of the application the sum of $25.00 or such other sum 
 as a Judge may direct. 
 
 (2) The requirements of this Eule as to security for costs 
 shall also apply to motions for prohibition, mandamus or quo 
 warranto. 
 
 HABEAS CORPUS. 
 
 17. No writ of habeas corpus shall be necessary but an order 
 may be made to the like effect, which order shall have the like 
 consequences that the writ would have. 
 
 18. On the argument of a motion for habeas corpus the Court 
 or a Judge may in its or his discretion direct an order to be 
 drawn up forthwith for the prisoner's discharge, which order 
 shall be a sufficient warrant for any goaler or constable, or other 
 person, for his discharge. 
 
 19. The notice of motion for prohibition, certiorari, quo war- 
 ranto, mandamus or habeas corpus shall be returnable before a 
 Judge of the Supreme Court or the Appellate Division. [0. 
 1294.] 
 
 20. When the motion is made to a Judge an appeal shall lie 
 from his order to the Appellate Division of the Court by leave 
 of the Judge or of the Appellate Division, but subject to such 
 right of appeal his decision shall be final. [0. 1297.] 
 
 General. 
 
 21. In all proceedings under these Crown Practice Rules the 
 costs shall be in the discretion of the Court or Judge who shall 
 have full power to order either the applicant or the party against 
 whom the application is made, or any other party to the proceed- 
 ings, to pay such costs or an}- part thereof according 1 to the re- 
 sult. 
 
 22. When costs are allowed the fees for all services shall be in 
 the discretion of the taxing officer, not exceeding $25.00; pro- 
 vided that the Judge may, in his discretion, allow an increased 
 fee in a proper case.
 
 536 ALBERTA RULES AS TO CASES STATED. 
 
 23. Proceedings for atta'chment for contempt, for disobedience 
 to any writ, judgment or order issued or made under these Rules 
 shall lie and shall be the same as for disobedience to any writ, 
 judgment or order in a civil action. 
 
 24. When no other provision is made by these Rules the pro- 
 cedure and practice shall as far as may be, be regulated by the 
 Crown Office Rules for the time being in force in England, and 
 subject thereto and to these Rules the practice shall be the same 
 as in civil proceedings in the Supreme Court. 
 
 Forms. 
 
 25. The forms for the time being in use in England under the 
 said Crown Office Rules where applicable, and, where not appli- 
 cable, forms of the like character as near as may be, shall be used 
 in all proceedings except where otherwise ordered by these Rules. 
 
 ALBERTA RULES AS TO CASES STATED UNDER SECTION 761 OP 
 THE CRIMINAL CODE. 
 
 1. An application to a Justice of the Peace to state and sign a 
 case under said section 761 shall be in writing and be delivered 
 to such Justice or left with some person for him at his place of 
 abode within seven days after the making of the conviction, or- 
 der, determination or other proceeding questioned. Such appli- 
 cation shall state the grounds upon which the proceeding is ques- 
 tioned, and whether the appeal is to be to the Appellate Division 
 or to a Judge. 
 
 2. Within fourteen days after such application has been so de- 
 livered or left for him the Justice shall state and sign and deliver 
 to the appellant a case setting forth the facts of the case and the 
 grounds on which the proceeding is questioned, stating: 
 
 (a) The substance of the information or complaint. 
 
 (b) The names of the prosecutor (or complainant) and de- 
 fendant. 
 
 (c) The date of the proceeding questioned. 
 
 (d) A copy of the evidence (if any) in full as taken before 
 the J. P. 
 
 (e) The substance of the conviction, order, determination or 
 other proceeding questioned. 
 
 (f) The grounds on which the same is questioned. 
 
 (g) The grounds upon which the Justice supports the pro- 
 ceeding questioned if the Justice sees fit to state any.
 
 EULES AS TO STATED CASES CONTINUED. 537 
 
 (2) But the Justice shall not deliver said case until after the 
 appellant shall have entered into a recognizance and paid the 
 fees as provided by section 762. 
 
 3. In the event of the Justice declining or refusing to state a 
 case, the appellant may apply to the Court or Judge for a Rule 
 as provided by section 764. 
 
 4. Within twenty days after the delivery to the appellant of a 
 case stated by a Justice, the appellant shall file the same or cause 
 it to be filed. 
 
 (a) With the Registrar of the Court, or 
 
 (b) If he desires the matter to be heard and determined by 
 a Judge in Chambers with the Clerk of the Court at the 
 place where the appeal is intended to be heard, provided 
 that upon sufficient cause for the delay being shown the 
 Court or Judge, as the case may be, may hear and de- 
 termine the matter although the case was not delivered 
 within said twenty days. 
 
 5. When the case stated has been delivered to the Registrar 
 the same shall, unless the Court or a Judge otherwise orders, be 
 heard at the next sittings of the Appellate Division, which shall 
 be not sooner than fourteen days after the delivery of the case 
 stated to the Registrar, and the appellant shall give to the re- 
 spondent ten days' notice in writing of the time and place of 
 hearing the appeal. 
 
 6. When the case has been delivered to the Clerk of the Court, 
 the appellant shall within five days after such delivery apply to 
 the Judge in Chambers to fix a time and pla'ce for the hearing 
 of the appeal, and the Judge shall thereupon appoint a time and 
 place for such hearing, and a copy of such appointment shall be 
 served upon the respondent, or as the Judge may direct, pro- 
 vided that if such application be not made within said period of 
 five days, the Judge may, upon sufficient cause for the delay be- 
 ing shown, fix such time and place notwithstanding that said 
 period may have elapsed. 
 
 7. The Justice "before or immediately after delivering a case 
 stated to the appellant shall transmit the recognizance to the pro- 
 per Clerk of the Court if the appeal is to a Judge, or to the Re- 
 gistrar if the appeal is to the Appellate Division. 
 
 8. Slight deviation from strict compliance with these Rules 
 shall not invalidate anyi proceeding or thing if the Court or 
 Judge sees fit to allow the same, either with or without requiring 
 the same to be corrected.
 
 538 THE CANADA EVIDENCE ACT. 
 
 CHAPTER XIV. 
 
 EVIDENCE. 
 
 This work would be incomplete if reference was not made to 
 the " Canada Evidence Act," R. S. C. 1906, ch. 145. 
 
 For the purpose of ready reference the first eighteen sections 
 of the Act are set out in full with notes of some Canadian cases, 
 and other references. 
 
 By sec. 1 the Act may be cited as the " Canada Evidence Act." 
 And by sec. 2 it is provided that Part I of the Act shall apply to 
 all criminal proceedings and other matters whatsoever respecting 
 which the Parliament of Canada has jurisdiction in this behalf. 
 
 Part II. of the Act applies to the taking of evidence in Can- 
 ada relating to proceedings in Courts out of Canada. 
 
 WITNESSES. 
 
 3. A person shall not be incompetent to give evidence by reason of 
 interest or crime. 
 
 It was not until the year 1833 in England that the old rule 
 was abolished, whereby every person having an interest, no mat- 
 ter how small, in the result of legal proceedings was absolutely 
 barred from being a witness. 
 
 A rule grew up in England that a conviction for treason, 
 felony or misdemeanours of forgery^ perjury and conspiracy ren- 
 dered a witness incompetent. 
 
 It was not until 6 & 7 Vic., c. 85, s. 1, was passed that dis- 
 qualification for crime was abolished. 
 
 A prisoner under sentence of death is a competent witness on 
 a criminal trial since the abolition of attainder by sec. 1033 of the 
 Code. R. v. Hatch, (1909) 16 C. C. C. 196. R. v. Well, 11 Cox 
 133, to the contrary, was decided in 1867 under the English law 
 as it then stood. 
 
 Husband and Wife Competent Witnesses. 
 
 4. Every person charged with an offence, and, except as in this section 
 otherwise provided, the wife or husband, as the case may be, of the person 
 so charged, shall be a competent witness for the defence, whether the per- 
 son so charged is charged solely or jointly with any other person.
 
 HUSBAND AND WIFE AS WITNESSES. 539 
 
 2. The wife or husband of a person charged with an offence against 
 any of the sections two hundred and two to two hundred and six inclusive, 
 two hundred and eleven to two hundred and nineteen inclusive, two hundred 
 and thirty-eight, two hundred and thirty-nine, two hundred and forty-four, 
 two hundred and forty -five, two hundred and ninety -eight, to three hundred 
 and two inclusive, three hundred and seven to three hundred and eleven 
 inclusive, three hundred and thirteen to three hundred and sixteen inclusive 
 of the Criminal Code, shall be a competent and compellable witness for the 
 prosecution without the consent of the person charged. 
 
 3. No husband shall be compellable to disclose any communication made 
 to him by his wife during their marriage, and no wife shall be compellable 
 to disclose any communication made to her by her husband during their 
 marriage. 
 
 4. Nothing in this section shall affect a case where the wife or husband 
 of a "person charged with an offence may at common law be called as a 
 witness without the consent of that person. 
 
 5. The failure of the person charged, or of the wife, or husband of 
 such person, to testify, shall not be made the subject of comment by the 
 Judge, or by counsel for the prosecution. 
 
 By the first sub-section every person charged with an offence 
 shall be a competent witness on his own behalf or for the defence 
 on behalf of another, with whom he is charged jointly. And the 
 wife shall be a competent witness for the defence on behalf of her 
 husband if he be charged with an offence, and a husband may be 
 a witness on behalf of his wife if she is so charged. 
 
 The Judge or magistrate should always inform the accused 
 of his right to give evidence in his own behalf, where he is unre- 
 presented by counsel. The failure of the accused to give evidence 
 shall not be the subject of comment. (Sub-section 5.) 
 
 It is to be noted that the competency! of husband and wife 
 to testify; generally is limited to their giving evidence on behalf 
 of the defence. It is only the wives or husbands of persons 
 charged with offences enumerated in sub-sec. 2 that are compelled 
 to testify on behalf of the prosecution, and the consent of the ac- 
 cused is not necessary. Their testimony in relation fo other of- 
 fences is not admissible for the prosecution without the consent 
 of the accused. 
 
 The accused cannot be called as a witness except on his own 
 application. 
 
 A co-defendant in a criminal case in which the defendants 
 are being tried jointly cannot be compelled to testify, but he may 
 volunteer to give evidence if he sees fit to do so. 
 
 But, where two prisoners are charged separately with the 
 same offence, one of them, after his committal for trial, may be 
 compelled to testify against the other: Ex parte Ferguson, 17 C. 
 C. C. 437. See also R. v. Blais, 10 C. C. C. 354.
 
 540 WHEN HUSBAND AND WIFE JOINTLY ACCUSED. 
 
 Although the accused may not be called as a witness except 
 on his own application ; yet, if he has made a statement before the 
 justice on the preliminary inquiry under sec. 684 of the Code, 
 it is provided by sec. 1001 of the Code that the statement made 
 by the accused person before the justice may, if necessary, upon 
 the trial of such person, be given in evidence against him with- 
 out further proof thereof, unless it is proved that the justice pur- 
 porting to have signed the same did not in fact sign the same. See 
 the comments under sec. 684 in chapter 7, page 211. 
 
 Husband and Wife Jointly Accused. 
 
 Any voluntary statement made byi the accused person tending 
 to connect himself, either directly or indirectly, with the commis- 
 sion of the crime charged is admissible in evidence against the 
 accused whether such statement is or is not a " confession." 
 
 Where two prisoners (husband and wife) are being jointly 
 tried for murder, a voluntary admission made by the wife is evi- 
 dence against her only, and if it implicate a fellow-prisoner the 
 trial Judge should warn the jury that the statement is evidence 
 only against the person making it, and should not be considered 
 in weighing the evidence against the fellow-prisoner. Serrible, 
 persons jointly charged in such a case would have good ground 
 for applying for separate trials. R. v. Martin, (1905) 9 C. C. 
 C. 371. 
 
 "The old and universally recognized rule of the English 
 criminal law that no one can be compelled to criminate himself 
 still prevails, and, therefore, in criminal cases no person accused 
 of an offence, whether indicted and tried alone or jointly with 
 others, can be required to give evidence, although he may do so 
 of his own accord." 
 
 "When a person on trial claims the right to give evidence on 
 his own behalf, he comes under the ordinary- rule as to crosTs- 
 oxamination in criminal cases. He may be asked all questions 
 pertinent to the issue, and cannot refuse to answer those which 
 may implicate him. Under the new law, which protects him from 
 the effect of his own evidence in proceedings subsequently brought, 
 but does not do so in the case in which the evidence is given, 
 he may be convicted out of his own mouth. He cannot be com- 
 pelled to testify, but when he offers and gives his evidence he has 
 tp take the consequences." WURTET.E. .T.. at p. 72. in K. v. Cqn- 
 nors etaL (1898) $ U. (1 C. 70.
 
 ACCUSED TESTIFYING IN HIS OWN BEHALF. 541 
 
 One co-defendant cannot be called byi another co-defendant, 
 and compelled to give evidence, but he may tender his evidence if 
 he sees fit. Ibid. 
 
 " The right and, if such it can be called, the privilege of the 
 accused now is to tender himself as a witness. When he does 
 so, he puts himself forward as a creditable person and, except in 
 so far as he may be shielded by some statutory protection, heTs 
 in the same situation as any other witness as regards liability 
 fo and extent of cross-examination.^ OSLER, J., at p. 411, in R. 
 vT D'Aowt, 5 C. C. U. 407. 
 
 " It is, therefore, clear that evidence of these convictions by 
 the accused's own admissions was proper, and that it was open 
 to the learned Judge to draw therefrom any inferences, favourable 
 or unfavourable to the accused, of which it was justly susceptible." 
 OSLER, J., ib., p. 413. 
 
 An accused person examined as a witness on his own behalf 
 may be cross-examined as to previous convictions against him; 
 the question is relevant to the issue as affecting the credibility! of 
 the accused as a witness. Ibid. 
 
 Where one of two prisoners tried together gives evidence on 
 his own behalf and this incriminates his co-defendant, counsel for 
 the latter is entitled to cross-examine as well as counsel for the 
 prosecution. E. v. Hadwen, [1902] 1 K. B. 882. 
 
 The depositions of a witness taken at a coroner's inquest with- 
 out objection by him that his answers may tend to criminate 
 him, and who is subsequently charged with an offence, are receiv- 
 able in evidence against him at the trial. R. v. Williams, 28 0. 
 R. 583, overruling R. v. Hendershott, 26 0. R. 678. 
 
 . In prosecutions of- certain crimes, such as passing counterfeit 
 bills or coins, or uttering forged paper, or knowingly receiving 
 stolen goods, criminal motive may be shewn by proof of other 
 crimes of the same nature. In prosecutions for obtaining goods, 
 or money, on false pretences, it has generally been held that evi- 
 dence of other false pretences, made under similar circumstances 
 and at about the same time, is relevant. Generally in criminal 
 prosecutions evidence of a motive for the commission of the 
 alleged crime is relevant against the accused, and is admissible 
 R. v. Ellis, 6 B. & C. 145; R. v. WinJcworth, 4 C. & P. 444; R. v. 
 Long, 6 C. & P. 179; R. v. Geering, 18 L. J. M. 0. 215; R. v. 
 Clewes, 4 C. & P. 221, and see R. v. Law, (1909) 15 C. C. C. 38?.
 
 V 
 
 542 DISCLOSURE OF COMMUNICATIONS DURING MARRIAGE. 
 
 So the want of any apparent motive is a relevant fact and 
 in favour of the accused and is admissible. Chamberlayee's Best 
 on Ev., s. 453. 
 
 When evidence of motive is relevant, the accused may testify 
 what his motive was in doing the alleged criminal act. See 
 Phipson, 5th ed., pp. 50, 122. 
 
 Facts tending to shew preparation on the part of the accused 
 to commit a criminal act are relevant and admissible to prove 
 the commission of the crime. Cham., Best on Evidence, s. 454. 
 
 So facts shewing capacity or opportunity to commit the 
 alleged crime are admissible as tending to render guilt probable. 
 Cham., Best on Evidence, s. 453. 
 
 Disclosure of Communication During Marriage. 
 
 Neither husband nor wife is bound to disclose a communica- 
 tion received from the other during marriage. Sub-section 3, s. 
 4, supra. 
 
 A letter written by the accused to his wife and intrusted to, 
 but opened by, a constable, was held inadmissible. R. v. Pamenier, 
 (1872), 12 Cox 177. And see Scott v. Com., 42 Am. St. Rep. 371, 
 and Taylor, 10th ed., s. 909A. 
 
 But conversations at which a third person was present or 
 which he overheard may be proved byi him. R. v. Smithies, 5 C. 
 & P. 332 ; R. v. Simons, 6 C. & P. 540 : R. v. Bartlett, 7 C. & P. 
 832. 
 
 And no protection exists with regard to communications made 
 between the parties before marriage, or to facts coming to their 
 knowledge during marriage, but from extraneous sources, and 
 the protected evidence will, if voluntarily given, be admissible. 
 O'Connor v. Marjoribariks, 4 M. & G. 435, overruling Beveridge 
 v. Minter, 1 C. & P. 364. 
 
 A divorced woman cannot be asked to disclose conversations 
 between her and her late husband. Monroe v. Twisleion, Peake 
 Add. Ca, 219. 
 
 A statement made by a wife in the presence of her husband is 
 receivable against him in evidence. R. v. Mallory, 13 Q. B. D. 
 33. 
 
 Though a woman lives with a man, uses his name, and passe? 
 as his wife, she is a competent witness for or against him, such 
 circumstances going only to her credit and not to her competency.
 
 ANSWERING INCRIMINATING QUESTIONS. 543 
 
 Bathews v. Galindo, 1 M. & Payne 565; Wells v. Fletcher, 5 C. 
 & P. 12. 
 
 On the trial of a man for the murder of his wife, her dying 
 declarations are evidence against him. John's Case, 1 East P. 
 C. 357; Woodcock's Case, Leach C. 500. 
 
 By sec. 5 of the Canada Evidence Act, it is provided as follows : 
 INCRIMINATING QUESTIONS. 
 
 5. No witness shall be excused from answering any question upon the 
 ground that the answer to such question may tend to criminate him, or may 
 tend to establish his liability to a civil proceeding at the instance of the 
 Crown or of any person. 
 
 2. If with respect to any question a witness objects x to answer upon 
 the ground that his answer may tend to criminate him, or may tend to 
 establish his liability to a civil proceeding at the instance of the Crown or 
 of any person, and if but for this Act, or the Act of any provincial legisla- 
 ture, the witness would therefore have been excused from answering such 
 question, then although the witness is by reason of this Act, or by reason 
 of such Provincial Act, compelled to answer, the answer so given shall not 
 be used or receivable in evidence against him in any criminal trial, or other 
 criminal proceeding against him thereafter taking place, other than a prose- 
 cution for perjury in the giving of such evidence. 
 
 If, when called upon to testify, the witness does not object to 
 do so, on the ground that his answers mayi tend to criminate him, 
 his answers are receivable against him (except in the case the sec- 
 tion provides for) in any criminal trial or other criminal pro- 
 ceeding against him thereafter. If, on the other hand, he does 
 object, he is protected. OSLER, J., at p. 241, in E. v.. Clark, 
 (1901) 5 C. C. C. 235. 
 
 Relevant statements made by the accused without objection 
 on his examination for discovery in a civil action prior to the 
 criminal proceedings are admissible on the criminal trial. 
 
 The deposition of a judgment debtor upon his examination as 
 to means may be proved in evidence against him on a criminal 
 charge of disposing of his property in fraud of his creditors, 
 unless at the time of his examination he objected on the ground 
 that his answer might tend to criminate him. R. v. Van Meter, 
 (1906) 11 C. C. C. 207. 
 
 The communication between the prisoner's wife and the 
 prisoner's counsel was not a privileged communication in the sense 
 of being a communication from her husband. No evidence was 
 given that he knew of or authorized it. The only point reserved, 
 as I understand the case, is with respect to what the solicitor told 
 her. This statement was certainly not within his duty, and being
 
 544 DEAF MUTES WITNESS NOT SPEAKING ENGLISH. 
 
 calculated to further or conceal a criminal act, does not come 
 within the solicitor's privilege. DAVIES, J., at p. 152, in Gosselin 
 v. The King, (1903) 7 C. C. C. 139, 33 S. C. R. 255. 
 
 The privilege between solicitor and client cannot be invoked 
 to protect communications which are in themselves parts of a 
 criminal or unlawful proceeding. Bullivant v. The Atty.-Genl. 
 for Victoria, [1901] A. C. at 201 ; R. v. Cox, 14 Q. B. D. 153. 
 
 DEAF MUTES. 
 
 The following provision in the Canada Evidence Act relates 
 to the evidence of mutes. 
 
 6. A witness who is unable to speak may give his evidence in any other 
 manner in which he can make it intelligible. 
 
 The evidence of a deaf mute may be taken either through an 
 interpreter who is conversant with the sign language of the deaf 
 and dumb, or byi writing the questions out and getting the wit- 
 ness to write the answers in reply. The oath can be administered 
 in the same way. 
 
 FOEEIGN WITNESS. 
 
 When it is sought to examine a witness through an interpreter 
 in a foreign tongue, the opposing counsel may be given leave first 
 to question the witness in English for the purpose of testing the 
 witness' competency to speak English. 
 
 Where a foreign witness examined in chief through an inter- 
 preter has some knowledge of English, the counsel entitled to 
 cross-examine may do so in English without the intervention of 
 the interpreter, and may also, if he chooses, put questions through 
 the interpreter. E. v. Wong On (No. 2), (1904) 8 C. C. 0. 343. 
 
 The trial Judge has no power to direct that an official inter- 
 preter appointed by the Government shall not act, because he is 
 objected to by counsel for the accused on the ground that he had 
 been actively engaged in assisting the prosecution at the Police 
 Court. 
 
 " I do not think you can find fault with the officers appointed 
 byi the Crown for their business." IRVING, J., in R. v. Wong On 
 (No. 1), (1904) 8 C. C. C. 342. 
 
 A conviction and commitment are not open to attack on 
 habeas corpus on ground of incompetency of the interpreter. The
 
 EXPERT WITNESSES PROOF OF HANDWRITING. 545 
 
 capacity of the interpreter is a question for the magistrate. R. 
 v. Meceklette, (1909) 15 C. C. C. 17. 
 
 EXPERT WITNESSES. 
 
 7. Where, in any trial or other proceeding, criminal or civil, it is in- 
 tended by the prosecution or the defence, or by any party, to examine as 
 witnesses professional or other experts entitled according to the law or 
 practice to give opinion evidence, not more than five of such witnesses may 
 be called upon either side without the leave of the Court or Judge or person 
 presiding. 
 
 2. Such leave shall be applied for before the examination of any of 
 the experts who may be examined without such leave. 
 
 PROOF OF HANDWRITING. 
 
 8. Comparison of a) disputed writing with any writing proved to the 
 satisfaction of the Court to J>e genuine shall be permitted to be made by 
 witnesses ; and such writings, and the evidence off witnesses respecting the 
 same, may be submitted to the Court and jury as evidence of the genuine- 
 ness or otherwise of the writing in dispute. 
 
 The opinions of skilled witnesses are admissible whenever the 
 subject is one upon which competency to form an opinion can 
 only be acquired by a course of special study or experience. Phip- 
 Bon, 5th ed., 363. 
 
 When the subject is one upon which the jury is as capable 
 of forming an opinion as the witness, the reason for .the admission 
 of such evidence fails and it will be rejected. Ibid. 
 
 An expert may give his opinion upon facts proved either by 
 himself or by other witnesses in his hearing at the trial, or upon 
 hypotheses based upon the evidence. An expert may refer to 
 text-books to refresh his memory, or to correct or confirm his 
 opinion, e.g., a doctor to medical treatises ; a valuer to price lists ; 
 a foreign lawyer to codes, text-writers and reports. Phipson, 5th 
 ed., 369-371. 
 
 As to comparison of handwriting, see Phipson, pp. 93, 94. 
 
 After all the evidence was in and the Judge had addressed the 
 jury, he allowed the jury to compare the admitted writing with 
 that which was disputed in order to draw their own conclusions 
 from a comparison of the two. On motion to set aside the con- 
 viction, the Supreme Court of Nova Scotia held that the learned 
 trial Judge was quite justified in the course he adopted. R. v. 
 Dixon (No. 2), (1897) 3 C. C. C. 220. 
 
 A prisoner cannot be compelled to provide a specimen of his 
 handwriting merely because he goes into the witness-box. It is 
 
 C.C.P. 35
 
 546 WHEN WITNESSES DEEMED TO BE ADVERSE. 
 
 true he renders himself liable to cross-examination and prosecu- 
 tion for perjury, if need be, but he is none the less an accused 
 person, and, therefore, ought not to be compelled to criminate 
 himself to any further extent than that which may strictly arise 
 out of the cross-examination. HUNTER, C.J., in R. v. Grinder, 
 (1905) 10 C. C. C. 333. 
 
 Adverse Witness. 
 
 A witness is considered adverse when, in the opinion of the 
 Judge (whose decision is final), he bears a hostile animus to the 
 party calling him and not merely when his testimony contradicts 
 his proof. Greenough v. Eccles, 5 C. B. N. S. 786 ; Reed \. King, 
 30 L. T. 290, and other cases cited by Phipson, 5th ed., p. 469. 
 
 If a witness by his conduct shews that he is hostile to the 
 party calling him, the latter may, in the discretion of the Judge 
 (which is not open to appeal), lead, or rather cross-examine him, 
 but the matter is wholly for the Court, and a party, though called 
 by his opponent, cannot as of right be treated as hostile. Rice v. 
 Howard, 16 Q. B. D. 681; Coles v. Coles, L. R, 1 P. & D. 70; 
 Price v. Manning, 42 Chy. Div. 372. 
 
 And the following is the provision of the Canada Evidence 
 Act respecting adverse witnesses, and the right to contradict them. 
 
 9. A party producing a witness shall not be allowed to impeach his 
 credit by general evidence of bad character, but if the witness, in the opinion 
 of the Court, proves adverse, such party may contradict him by other 
 evidence, or by leave of the Court, may prove that the witness made at 
 other times a statement inconsistent with his present testimony : but before 
 such last mentioned proof can be given the circumstances of the supposed 
 statement, sufficient to designate the particular occasion, shall be men- 
 tioned to the witness, and he shall be asked whether or not he did make 
 such statement. 
 
 In spite of these statutes, a party may, as of right, without 
 obtaining such opinion or leave, contradict his own witness, 
 whether adverse in the above sense or not, by other evidence rele- 
 vant to the issue, and thus indirectly discredit him, e.g., where 
 an attesting witness denies his own signature. Phipson, 5th cd., 
 469, and see R. v. Hutcliinson, 8 C. C. C. 486. 
 
 " If. therefore, a witness makes a statement which the party 
 who has called him knows to be directly opposite to the truth, 
 unless the Court is of the opinion that the witness i? hostile, that 
 he has shewn by his demeanour, or by the way in which he has 
 giving his evidence, that he has some ill-will or bad feeling against 
 the party who has called him. a though be cannot do so directly.
 
 CROSS-EXAMINATION AS TO PREVIOUS STATEMENTS. 547 
 
 he may) contradict him indirectly; that is to say, the party who 
 has produced him is not debarred in the interest of truth and 
 justice from producing other witnesses, not for the express purpose 
 of contradicting his witness, but to establish the truth by other 
 distinct and independent evidence." WURTELE, J., at p. 138, in 
 7?. v. Laurin, (1902) 6 C. C. C. 135. 
 
 CROSS-EXAMINATION AS TO PREVIOUS STATEMENTS. 
 
 1O. Upon any trial a witness may be cross-examined as to previous 
 statements made by him in writing, or reduced to writing, relative to the 
 subject-matter of the case, without such writing being shewn to him : Pro- 
 vided that, if it is intended to contradict the witness by the writing, his 
 attention must, before such contradictory proof can be given, be called to 
 those parts of the writing which are to be used for the purpose of so con- 
 tradicting him ; and that the Judge, at any time during the trial, may 
 require the production of the writing for his inspection, and thereupon 
 make such use of it for the purposes of the trial as he thinks fit. 
 
 2. A deposition of the witness, purporting to have been taken before a 
 justice on the investigation of a criminal charge and to be signed by the 
 witness ami the justice, returned to and produced from the custody of the 
 proper officer, shall be presumed prima facie to have been signed by the 
 witness. 
 
 A witness having been cross-examined as to a previous state- 
 ment relative to the subject matter of the case, and having denied 
 that she made it, proof can be given that she did indeed make it, 
 the particular occasion having been designated, and there is noth- 
 ing to prevent such evidence being given by witnesses who were 
 present and heard the statement made. The depositions before 
 the magistrate were admittedly lost, and it was held that a person 
 who was present at the examination could be called and testify as 
 ,to what the witness did say at the preliminary hearing. R. v. 
 Troop, (1898) 2 C. C. C. 22. 
 
 As to the reading of depositions taken on a preliminary in 
 the event of death, sickness or absence of the deponent, see sec. 
 999 of the Code. These depositions may be used against the per- 
 son on his prosecution for another charge. Section 1000. And 
 the statement of the accused before the justice on a preliminary 
 hearing may be given in evidence against him on his trial. Sec- 
 tion 1001. 
 
 CROSS-EXAMINATION AS TO PREVIOUS ORAL STATEMENTS. 
 
 11. If a witness upon cross-examination as to a former statement made 
 by him relative to the subject-matter of the case, and inconsistent with his 
 present testimony, does not distinctly admit that he did make such state- 
 ment, proof may be given that he did in fact make it; but before such 
 proof can be given the circumstances of the supposed statement, sufficient 
 to designate the particular occasion, shall be mentioned to the witness, and 
 he shall be asked whether or not he did make such statement.
 
 548 CROSS-EXAMINATION AS TO PREVIOUS CONVICTIONS. 
 
 On a charge of forcible entry;, evidence relating to the title 
 of land is not admissible and a statement in the cross-examina- 
 tion of the accused denying that he had previously stated that he 
 had sold the land to the complainant is not " a statement relative 
 to the subject matter of the case," but only as to a collateral 
 matter, and evidence to contradict the denial of the accused was 
 improperly received. R. v. Walker, (1906) 12 C. C. C. 197. 
 
 CROSS-EXAMINATION AS TO PREVIOUS CONVICTIONS. 
 
 12. A witness may be questioned as to whether he has been convicted 
 of any offence, and upon being so questioned, if he either denies the fact or 
 refuses to answer, the opposite party may prove such conviction. 
 
 2. The conviction may be proved by producing, 
 
 (a) a certificate containing the substance and effect only, omitting 
 the formal part, of the indictment and conviction, if it is for an 
 indictable offence, or a copy of the summary conviction, if for an 
 offence punishable upon summary conviction, purporting to be signed 
 by the clerk of the Court or other officer haying the custody of the 
 records of the Court in which the conviction, if upon indictment, was 
 had, or to which the conviction, if summary, was returned ; and, 
 
 (6) proof of identity. 
 
 As to accused who gives evidence on his own behalf being 
 cross-examined as to previous convictions: see R. v. D'Aoust, 
 (1902) 5 C. C. C. 407, supra. 
 
 Previous convictions as a rule may not be proved against the 
 accused until after verdict. This rule does not apply when, (1) 
 they form an essential ingredient of the offence, (2) or are ten- 
 dered to shew guilty knowledge, or (3) to rebut good character, 
 or (4) to contradict the defendant's denial of the conviction, or 
 (5) to prove public rights, or (6) to prove a plea of res judicata. 
 See R. v. Edwards, 13 C. C. C. 202. 
 
 OATHS AND AFFIRMATIONS. 
 
 13. Every Court or Judge, and every person having, by law or con- 
 sent of parties, authority to hear and receive evidence, shall have power to 
 administer an oath to every witness who is legally called to give evidence 
 before that Court, Judge or person. 
 
 See Chapter VII., page 201. 
 
 AFFIRMATION INSTEAD OF OATH. 
 
 14. If a person called or desiring to give evidence, objects on grounds 
 of conscientious scruples, to take an oath, or is objected to as incompetent 
 to take an oath, such person may make the following affirmation : " I 
 solemnly affirm that the evidence to be given by me shall be the truth, the 
 whole truth and nothing but the truth." 
 
 2. Upon the person making such solemn affirmation his evidence shall 
 be taken and have the same effect as if taken under oath.
 
 AFFIRMATIONS EVIDENCE OF CHILD JUDICIAL NOTICE. 549 
 
 A mere statement of the witness, that he prefers to affirm and 
 considers it optional, is insufficient to make legal his testimony 
 given on affirmation. He must "object on grounds of con- 
 scientious scruples" to take the oath. R. v. Deakin, 19 C. C 
 C. 62. 
 
 See also Ourry v. R., 22 C. C. C. 191, 48 S. C. E. 532, the 
 effect of which is given at p. 203, supra. 
 
 AFFIRMATION BY DEPONENT. 
 
 15. If a person required or desiring to make an affidavit or deposition 
 in a proceeding or on an occasion whereon or touching a matter respecting 
 which an oath is required or is lawful, whether on the taking of office or. 
 
 otherwise, refuses or is unwilling to be sworn, on grounds of conscientious 
 scruples, the Court or Judge, or other officer or person qualified to take 
 affidavits or depositions, shall permit such person, instead of being sworn, 
 to make his solemn affirmation in the words following, viz. : " I, A. B., do 
 solemnly affirm, etc." ; which solemn affirmation shall be of the same force 
 and effect as if such person had taken an oath in the usual form. 
 
 2. Any witness whose evidence is admitted or who makes an affirmation 
 under this or the last preceding section shall be liable to indictment and 
 punishment for perjury in all respects as if he had been sworn. 
 
 EVIDENCE OF A CHILD. 
 
 16. In any legal proceeding where a child of tender years is offered as 
 a witness, and such child does not, in the opinion of the Judge, justice or 
 other presiding officer, understood the nature of an oath, the evidence of 
 such child may be received, though not given upon oath, if, in the opinion 
 of the Judge, justice or other presiding officer, as the case may be, such 
 child is possessed of sufficient intelligence to justify the reception of the 
 evidence, and understands the duty of speaking the truth. 
 
 2. No case shall be decided upon such evidence alone, and such evidence 
 must be corroborated by some other material evidence. 
 
 See remarks and cases on this subject, ante, pp. 203, 204. 
 JUDICIAL NOTICE. 
 
 17. Judicial notice shall be taken of all Acts of the Imperial Parlia- 
 ment, of all ordinances made by the Governor in Council, or the Lieutenant 
 Governor in Council of any province or colony which, or some portion of 
 which, now forms or hereafter may form part of Canada, and of all the Acts 
 of the legislature of any such province or colony, whether enacted before or 
 after the passing of the British North America Act, 1867. 
 
 18. Judicial notice shall be taken of all public Acts of the Parlia- 
 ment of Canada without such Acts being specially pleaded.
 
 550 LIMITATION OF PROSECUTIONS AND ACTIONS. 
 
 CHAPTER XV. 
 
 LIMITATION OF PROSECUTIONS AND ACTIONS. 
 Part XXIV. of the Code. 
 
 These sections of the Code, 1140 to 1157, are added for re- 
 ference and without any notes or comments. 
 
 Prosecutions for Crimes. 
 
 114O. No prosecution for an offence against this Act, or action for 
 penalties or forfeiture, shall be commenced, 
 
 (a) after the expiration of three years from the time of its commis- 
 sion if such offence be 
 
 (i) treason, except treason by killing His Majesty, or where the 
 overt act alleged is an attempt to injure the person of His Majesty 
 section seventy-four. 
 
 (ii) treasonable offences section seventy-eight, 
 
 (iii) any offence against Part VII relating to the fraudulent mark- 
 ing of merchandise : or, 
 
 (6) after the expiration of two years from its commission if such 
 
 offence be 
 
 (i) a fraud upon the Government section one hundred and fifty- 
 eight, 
 
 (ii) a corrupt practice in municipal affairs section one hundred and 
 sixty -one. 
 
 (iii) unlawfully solemnizing marriage section three hundred and 
 eleven ; or, 
 
 (c) after the expiration of one year from its commission if such 
 offence be, 
 (i) opposing reading of Riot Act and continuing together after 
 
 proclamation section ninety-two, 
 (ii) refusing to deliver weapon to justice section one hundred and 
 
 twenty-six, 
 (iii) coming armed near public meeting section one hundred and 
 
 twenty-seven, 
 (iv) lying in wait near public meeting section one hundred and 
 
 twenty-eight, 
 (v) seduction of girl under sixteen section two hundred and 
 
 eleven, 
 
 (vi) seduction under promise of marriage section two hundred and 
 twelve, 
 
 (vii) seduction of a ward or employee section two hundred and 
 thirteen. 
 
 (viii) parent or guardian procuring defilement of girl section two 
 hundred and fifteen. 
 
 (ix) unlawfully defiling women, procuring, etc. section two hundred 
 and sixteen, 
 
 (x) householders permitting defilement of girls on their premises 
 section two hundred and seventeen : or,
 
 LIMITATION OF TIME FOR PROSECUTIONS. 551 
 
 (d) after the expiration of six months from its commission if the 
 offence be 
 
 (i) unlawfully drilling section ninety-eight, 
 
 (ii) being unlawfully drilled section ninety -nine, 
 
 (iii) having possession of offensive weapons for purposes dangerous 
 
 to the public peace section one hundred and fifteen, 
 (iv) proprietor ofl newspaper publishing advertisement offering 
 
 reward for recovery of stolen property section one hundred and 
 
 eighty-three, paragraph (d) ; or, 
 
 (e) after the expiration of three months from its commission if the' 
 offence be 
 
 (i) cruelty to animals sections five hundred and forty-two and five 
 
 hundred and forty-three, 
 (ii) railways and vessels violating provisions relating to conveyance 
 
 of cattle section five hundred and forty-four, 
 (iii) refusing peace officer or constable admission section five 
 
 hundred and forty-five ; or, 
 
 (/) after the expiration of one month from its commission if the offence 
 be improper use of offensive weapons under sections one hundred and 
 sixteen and one hundred and eighteen to one hundred and twenty- 
 four inclusive. 
 
 2. No person shall be prosecuted, under the provisions of section 
 seventy-four or seventy-eight of this Act, for any overt act of treason 
 expressed or declared by open and advised speaking unless information of 
 such overt act, and of the words by which the same was expressed or de- 
 clared, is given upon oath to a justice within six days after the words are 
 spoken and a warrant for the apprehension of the offender is issued within 
 ten days "after such information is given. 
 
 1141. No action, suit or information shall be brought or laid for any 
 penalty or forfeiture under any Act, except within two years after the 
 cause of action arises or after the offence for which such penalty or for- 
 feiture is imposed is committed, unless the time is otherwise limited by uny 
 Act or by law. 
 
 1142. In the case of any offence punishable on summary conviction, 
 if no time is specially limited for making any complaint, or laying any 
 information, in the Act or law relating to the particular case, the com- 
 plaint shall be made, or the information shall be laid, within six months 
 from the time when the matter of complaint or information arose, except 
 in the North-west Territories and the Yukon Territory, in all which Terri- 
 tories the time within which such complaint may be made, or such informa- 
 tion laid, shall be twelve months from the time when the matter of the 
 complaint or information arose. 
 
 Actions against Persons Administering the Criminal Law. 
 
 1143. Every action and prosecution against any person for anything 
 purporting to be done in pursuance of any Act of the Parliament of Canada 
 relating to criminal law, shall, unless otherwise provided, be laid and tried 
 in the district, county or other judicial division, where the act was com- 
 mitted, and not elsewhere, .and shall not be commenced except within six 
 months next after the act committed. 
 
 1144. Notice in writing of such action and of the cause thereof, shall 
 be given to the defendant one month at least before the commencement of 
 the action. 
 
 1145. In any such action the defendant may plead the general issue, 
 and give the provisions of this title and the special matter in evidence at 
 any trial had thereupon. 
 
 1146. No plaintiff shall recover in any such action if tender of suffi- 
 cient amends is made before such action brought, or if a sufficient sum of
 
 552 ACTIONS AGAINST JUSTICES. 
 
 money is paid into Court by or on behalf of the defendant after such action 
 brought. 
 
 1147. If such action is commenced after the time limited as afiore- 
 said for bringing the same, or is brought or the venue laid in any other 
 place than as aforesaid, a verdict shall be found or judgment shall be given 
 for the defendant ; and thereupon, or if the plaintiff becomes nonsuit, or 
 discontinues any such action after issue joined, or if upon demurrer, or 
 otherwise judgment is given against the plaintiff, the defendant shall, in 
 the discretion of the Court, recover his full costs as between solicitor and 
 client, and shall have the like remedy for the same as any defendant has 
 by law in other cases. 
 
 2. Although a verdict or judgment is given for the plaintiff in any such 
 action, such plaintiff shall not have costs against the defendant, unless the 
 Judge before whom the trial is had certifies his approval of the action. 
 
 1148. Nothing herein shall prevent the effect of any Act in force in 
 any province of Canada, for the protection of justices or other officers from 
 vexatious actions for things purporting to be done in the performance of 
 their duty. 
 
 1149. Every action brought against any commissioner under Part III. 
 of this Act or any justice, constable, peace officer or other person, for any- 
 thing done in pursuance of the said Part, shall be commenced within six 
 months next after the alleged cause of action arises ; and the venue shall 
 be laid or the action instituted in the district or county or place where the 
 cause of action arose ; and the defendant may plead the general issue and 
 give this Act and the special matter in evidence. 
 
 2. If such action is brought after the time limited, or the venue is laid 
 or the action brought in any other district, county or place than in this 
 section prescribed, the judgment or verdict shall be given for the defendant ; 
 and in such case, or if the judgment or verdict is given for the defendant 
 on the merits, or if the plaintiff becomes non-suited or discontinues after 
 appearance is entered, or has judgment rendered against him on demurrer, 
 the defendants shall be entitled to recover double costs. 
 
 1150. All actions for penalties arising under the provisions of section 
 eleven hundred and thirty-four shall be commenced within six months next 
 after the cause of the action accrues, and the same shall be tried in the dis- 
 trict, county or place wherein such penalties have been incurred ; and if a ver- 
 dict or judgment passes for the defendant, or the plaintiff becomes non-suit, 
 or discontinues the action after issue joined, or if upon demurrer or other- 
 wise, judgment is given against the plaintiff, the defendant sha.ll, in the 
 discretion of the Court, recover his costs of suit, as between solicitor and 
 client, and shall have the like remedy for the same as any defendant has 
 by law in other cases. 
 
 1151. No action or proceeding shall be commenced or had against 
 a justice for enforcing a conviction, order or determination affirmed, 
 amended or made by the Court under section seven hundred and sixty-five.
 
 WHEN ARRESTS MAY BE MADE WITHOUT WARRANT. 553 
 
 CHAPTER XVI. 
 
 ARRESTS WITHOUT WARRANT. 
 
 Part XIII. of the Code. 
 
 There is also here added for reference sees. 646 to 652, being 
 the provisions of the Code relating to arrests without warrant. 
 And also are added sees. 30 to 47 inclusive, all relating to arrest 
 by peace officers and others with and without warrant. 
 
 Arrests without Warrant. 
 
 646. Any person may arrest without warrant any one who is found 
 committing any of the offences mentioned in sections, 
 
 (a) seventy-four, treason ; seventy-six, accessories after the fact to 
 treason ; seventy-seven, seventy-eight and seventy-nine, treasonable 
 offences ; eighty, assaults on the King ; eighty-one, inciting to mutiny ; 
 eighty-five and eighty-six, information illegally obtained or com- 
 municated ; 
 
 (6) ninety-two, offences respecting the reading of the Riot Act; ninety- 
 six, riotous destruction of property : ninety-seven, riotous damage to 
 property ; 
 
 (c) one hundred and twenty-nine, administering, taking or procuring 
 the taking of oath to commit certain crimes ; one hundred and 
 thirty, administering, taking or procuring the taking of other unlaw- 
 ful oaths ; 
 
 (d) one hundred and thirty-seven, piracy: one hundred and thirty- 
 eight, piratical acts ; one hundred and thirty-nine, piracy with 
 violence ; 
 
 (e) one hundred and eighty-five, being at large while under sentence 
 of imprisonment ; one hundred and eighty-seven, breaking prison ; one 
 hundred and eighty-nine, escape from custody or from prison ; one 
 hundred and ninety, escape from lawful custody; 
 
 (/) two hundred and two, unnatural offence ; 
 
 (g) two hundred and sixty-three, murder; two hundred and sixty-four, 
 attempt to murder ; two hundred and sixty-seven, being accessory 
 after the fact to murder ; two hundred and sixty-eight, manslaughter ; 
 two hundred and seventy, attempt to commit suicide ; 
 
 (h) two hundred and seventy-three, wounding with intent to do bodily 
 harm ; two hundred and seventy-four, wounding ; two hundred and 
 seventy-six, stupefying in order to commit an indictable offence ; two 
 hundred and seventy-nine and two hundred and eighty, injuring or 
 attempting to injure by explosive substances : two hundred and eighty- 
 two, intentionally endangering persons on railways ; two hundred and 
 eighty-three, wantonly endangering persons on railways ; two hundred 
 and eighty-six, preventing escape from wreck ; 
 
 (i) two hundred and ninety-nine, rape : three hundred, attempt to com- 
 mit rape ; three hundred and one, defiling children under fourteen ; 
 
 (7) three hundred and thirteen, abduction of a woman ; 
 
 (fc) three hundred and fifty-eight, theft by agents and others ; three 
 hundred and fifty-nine, theft by clerks, servants and others ; three 
 hundred and sixty, theft by tenants and lodgers ; three hundred and 
 sixty-one, theft of testamentary instruments ; three hundred and
 
 554 ARRESTS WITHOUT WARRANT. 
 
 sixty-two, theft of documents of title ; three hundred and sixty-three, 
 theft of judicial or official documents ; three hundred and sixty-four, 
 three hundred and sixty-five and three hundred and sixty-six, theft 
 of postal matter ; three hundred and sixty-seven, theft of election 
 documents ; three hundred and sixty-eight, theft of railway tickets ; 
 three hundred and sixty-nine, theft of cattle ; three hundred and 
 seventy-one, theft of oysters ; three hundred and seventy-two, theft 
 of things fixed to buildings or land ; three hundred and sevent3'-nine, 
 stealing from the person ; three hundred and eighty, stealing in dwell- 
 ing-houses ; three hundred and eighty-one, stealing by picklocks, etc. ; 
 three hundred and eighty-two, stealing from ships, docks, \vharfs or 
 quays ; three hundred and eighty-three, stealing wreck ; three hundred 
 and eighty-four, stealing on railways ; three hundred and eighty-six, 
 stealing things not otherwise provided for; three hundred and eighty - 
 seven, stealing where value over two hundred dollars ; three hundred 
 and eighty-three, stealing in manufactories ; three hundred and ninety, 
 criminal breach of trust ; three hundred and ninety-one, public ser- 
 vant refusing to deliver up chattels, money, valuables, security, books, 
 papers, accounts or documents ; three hundred and ninety-six, destroy- 
 ing, cancelling, concealing or obliterating any documents of title ; 
 three hundred and ninety-eight, bringing stolen property into Canada ; 
 
 (I) three hundred and ninety-nine, receiving property obtained by crime ; 
 (m) four hundred and ten, personation of certain persons; 
 
 (n) four hundred and forty-six, aggravated robbery ; four hundred and 
 forty-seven, robbery ; four hundred and forty-eight, assault with in- 
 tent to rob ; four hundred and forty-nine, stopping the mail ; four 
 hundred and fifty, compelling execution of documents by force ; four 
 hundred and fifty-one, sending letter demanding with menaces ; four 
 hundred and fifty-two, demanding with intent to steal ; four hundred 
 and fifty-three, extortion by certain threats ; 
 
 (o) four hundred and fifty-five, breaking place of worship and commit- 
 ting an indictable offence ; four hundred and fifty-six, breaking place 
 of worship with intent to commit an indictable offence ; four hundred 
 and fifty-seven, burglary ; four hundred and fifty-eight, housebreak- 
 ing and committing an indictable offence ; four hundred and fifty- 
 nine, housebreaking with intent to commit an indictable offence ; i'our 
 hundred and sixty, breaking shop and committing an indictable 
 offence ; four hundred and sixty-one, breaking shop with intent to 
 commit an indictable offence ; four hundred and sixty-two, being 
 found in a dwelling-house by night ; four hundred and sixty-three, 
 being armed, with intent to break a dwelling-house ; four hundred 
 and sixty-four, being disguised or in possession of housebreaking 
 instruments ; 
 
 (p) four hundred and sixty -eight, four hundred and sixty-nine and 
 four hundred and seventy, forgery ; four hundred and sixty-seven, 
 uttering forged documents ; four hundred and seventy-two, counter- 
 feiting seals ; four hundred and seventy-eight, using probate obtained 
 by forgery or perjury ; five hundred and fifty, possessing forged bank 
 notes ; 
 
 (q) four hundred and seventy-one, making, having or using instru- 
 ment for forgery or having or uttering forged bond or undertaking ; 
 four hundred and seventy-nine, counterfeiting stamps ; four hundred 
 and eighty, injuring or falsifying registers; 
 
 (r) one hundred and twelve, attempt to damage by explosives ; five 
 hundred and ten. mischief ; five hundred and eleven, arson ; five 
 hundred and twelve, attempt to commit arson ; five hundred and 
 thirteen, setting fire to crops ; five hundred and fourteen, attempt- 
 ing to set fire to crops ; five hundred and seventeen, mischief on rail- 
 ways ; five hundred and twenty, mischief to mines ; five hundred and 
 twenty-one, injuries to electric telegraphs, magnetic telegraphs, elec- 
 tric lights, telephones and fire alarms ; five hundred and twenty-two, 
 wrecking ; five hundred and twenty-three, attempting to wreck : five 
 hundred and twenty-six, interfering with marine signals ;
 
 WHEN ARRESTS MAY BE MADE WITHOUT WARRANT. 555 
 
 (a) five hundred and fifty-two, counterfeiting gold and silver coin : five 
 hundred and fifty-six, making instruments for coining ; five hundred 
 and fifty-eight, clipping current coin ; five hundred and sixty, pos- 
 sessing clippings of current coin ; five hundred and sixty-two, count- 
 erfeiting copper coin ; five hundred and sixty-three, counterfeiting 
 foreign gold and silver coin ; five hundred and sixty-seven, uttering 
 copper coin not current. 
 
 647. A peace officer may arrest, without warrant, any one who has 
 committed any of the offences mentioned, in the sections in the last preced- 
 ing section mentioned or in sections, 
 
 (a) four hundred and five, obtaining by false pretense ; four hundred 
 and six, obtaining execution of valuable securities by false pretense ; 
 
 (6) five hundred and twenty-five, injuring dams, etc., or blocking 
 timber channel ; five hundred and thirty-six, attempting to injure or 
 poison cattle ; 
 
 (c) five hundred and forty-two, cruelty to animals; five hundred and 
 forty-three, keeping cock-pit ; 
 
 (d) five hundred and fifty-five, exporting counterfeit coin; five hundred 
 and sixty-one, possessing counterfeit current coin ; five hundred and 
 sixty-three, paragraph (b), bringing into Canada or possessing 
 counterfeit current foreign gold or silver coin ; five hundred and 
 sixty-three, paragraph (d), counterfeiting foreign copper coin. 
 
 648. A peace officer may arrest, without warrant, any one whom he 
 finds committing any criminal offence. 
 
 2. Any person may arrest, without warrant, any one whom he finds 
 committing any criminal offence by night. 
 
 649. Any one may arrest without warrant a person whom he, on rea- 
 sonable and probable grounds, believes to have committed a criminal offence 
 and to be escaping from, and to be freshly pursued by, those whom the 
 person arresting, on reasonable and probable grounds, believes to have law- 
 ful authority to arrest such person. 
 
 650. The owner of any property on or with respect to which any per- 
 son is found committing any criminal offence, or any person authorized by 
 such owner, may arrest, without warrant, the person so found, who shall 
 forthwith be taken before a justice to be dealt with according to law. 
 
 651. Any officer in His Majesty's service, any warrant or petty 
 officer in the navy, and any non-commissioned officer of marines may arrest 
 without warrant any person found committing any of the offences mentioned 
 in section one hundred and forty-one. 
 
 652. Any peace officer may, without a warrant, take into custody 
 any person whom he finds lying or loitering in any highway, yard or other 
 place during the night, and whom he has gopd cause to suspect of having 
 committed, or being about to commit, any indictable offence, and may detain 
 such person until he can be brought before a justice of the peace, to be dealt 
 with according to law ; 
 
 (a) No person who has been so apprehended shall be detained after 
 noon of! the following day without being brought before a justice of Ihe 
 peace ; 
 
 652A. Any peace officer may arrest without a warrant any person 
 whom he has good cause to suspect of having committed or being about to 
 commit any of the offences mentioned in section 216. 
 
 ARRESTS GENERALLY, SECS. 30 TO 47. 
 
 3O. Every peace officer who. on reasonable and probable grounds, 
 believes that an offence for which the offender may be arrested without 
 warrant has been committed, whether it has been committed or not, and
 
 556 ARRESTS GENERALLY SECTIONS 30 TO 47. 
 
 who, on reasonable and probable grounds, believes that any person has com- 
 mitted that offence, is justified in arresting such person without warrant, 
 whether such person is guilty or not. 
 
 31. Every one called upon to assist a peace officer in the arrest of a 
 person suspected of having committed such offence is justified in assisting, 
 if he knows that the person calling on him for assistance is a peace officer, 
 and does not know that there is no reasonable ground for the suspicion. 
 
 32. Every one is justified in arresting without warrant any person 
 whom he finds committing any offence -for which the offender may be 
 arrested without warrant, or may be arrested when found committing. 
 
 33. If any offence for which the offender may be arrested without war- 
 rant has been committed, any one who, on reasonable and probable grounds, 
 believes that any person is guilty of that offence is justified in arresting 
 him without warrant, whether such person is guilty or not. 
 
 34. Every one is protected from criminal responsibility for arresting 
 without warrant any person whom he, on reasonable and probable grounds, 
 believes he finds committing by night any offence for whlcn the offender may 
 be arrested without warrant. 
 
 35. Every peace officer is justified in arresting without warrant any 
 person whom he finds committing any offence. 
 
 36. Every one is justified in arresting without warrant any person 
 whom he finds by night committing any offence. 
 
 2. Every peace officer is justified in arresting without warrant any 
 person whom he finds lying or loitering in any highway, yard or other place 
 by night, and whom he has good cause to suspect of having committed or 
 being about to commit any offence for which an offender may 'be arrested 
 without warrant. 
 
 37. Every one is protected from criminal responsibility for arresting 
 without warrant any person whom he, on reasonable and probable grounds, 
 believes to have committed an offence and to be escaping from and to be 
 freshly pursued by those whom he, on reasonable and probable grounds, 
 believes to have lawful authority to arrest that person for such offence. 
 
 38. Nothing in this Act shall take away or diminish any authority 
 given by any Act in force for the time being to arrest, detain or put any 
 restraint on any person. 
 
 39. Every one executing any sentence, warrant or process, or in mak- 
 iny any arrest, and every one lawfully assisting him, is justified, or pro- 
 tected from criminal responsibility, as the case may be, in using such force 
 as may be necessary to overcome any force used in resisting such execution 
 or arrest, unless the sentence, process or warrant can be executed or the 
 arrest effected by reasonble means in a less violent manner. 
 
 (The corresponding section (31) of the Criminal Code, 1892, after the 
 words " every one " in the first line, had the words " justified or protected 
 from criminal responsibility in " which have been dropped, apparently by 
 an oversight, in the 1906 reprint. The meaning is not very clear without 
 the omitted words. Ed.) 
 
 40. It is the duty of every one executing any process or warrant to 
 have it with him, and to produce it if required. 
 
 2. It is the duty of every one arresting another, whether with or with- 
 out warrant, to give notice, where practicable, of the process or warrant 
 under which he acts, or of the cause of the arrest. 
 
 3. A failure to fulfil either of the two duties last mentioned shall not 
 of itself deprive the person executing the process or warrant or his assist- 
 ants, or the person arresting, of protection from criminal responsibility, but 
 shall be relevant to the inquiry whether the process or warrant might not 
 have been executed, or the arrest effected, by reasonable means in a less 
 violent manner. 
 
 41. Every peace officer proceeding lawfully to arrest, with or without 
 warrant, any person for any offence for which the offender may be arrested
 
 ARRESTS ESCAPES BREACH OF THE PEACE. 55? 
 
 without warrant, and every one lawfully assisting in such arrest, is justi- 
 fied, if the person to be arrested takes to flight to avoid arrest, in using 
 such force as may be necessary to prevent his escape by such flight, unless 
 such escape can be prevented by reasonable means in a less violent manner. 
 
 42. Every private person proceeding lawfully to arrest without war- 
 rant any person for any offence for which the offender may be arrested 
 without warrant, is justified, if the person to be arrested takes to flight to 
 avoid arrest, in using such force as may be necessary to prevent his escape 
 by flight, unless such escape can be prevented by reasonable means in a less 
 violent manner, if such force is neither intended nor likely to cause death 
 or grievous bodily harm. 
 
 43. Every one proceeding lawfully to arrest any person for any cause 
 other than an offence in the last section mentioned is justified, if the per- 
 son to be arrested takes to flight to avoid arrest, in using such force as 
 may be necessary to prevent his escape by flight, unless such escape can be 
 prevented by reasonable means in a less violent manner, if such force 
 is neither intended nor likely to cause death or grievous bodily harm. 
 
 44. Preventing escape or rescue after arrest. Every one who 
 has lawfully arrested any person for any offence for which the offender 
 may be arrested without warrant is protected from criminal responsibility 
 in using such force in order to prevent the rescue or escape of the person 
 arrested as he believes, on reasonable grounds, to be necessary for that pur- 
 pose. 
 
 45. Every one who has lawflully arrested any person for any cause 
 other than an offence for which the offender may be arrested without war- 
 rant is protected from criminal responsibility in using such force in order 
 to prevent his escape or rescue as he believes, on reasonable grounds, to be 
 necessary for that purpose ; Provided that such force is neither intended 
 uor likely to cause death or grievous bodily harm. 
 
 46. Preventing breach, of the peace. Every one who witnesses a 
 breach of the peace is justified in interfering to prevent its continuance or 
 renewal and may detain any person committing or about to join in or 
 renew such breach of the peace, in order to give him into the custody of a 
 peace officer: provided that the person interfering uses no more force than 
 is reasonably necessary for preventing the continuance or renewal of such 
 breach of the peace, or than is reasonably proportioned to the danger to 
 be apprehended from the continuance or renewal of such breach of the 
 peace. 
 
 47. Every peace officer who witnesses a breach of the peace and every 
 person lawfully assisting him, is justified in arresting any one whom he 
 finds committing such breach of the peace, or whom he, on reasonable and 
 probable grounds, believes to be about to join in or renew such breach of 
 the peace. 
 
 2. Every peace officer is justified in receiving into custody any person 
 given into his charge as having been a party to a breach of the peace by 
 one who has, or whom such peace officer, upon reasonable and probable 
 grounds, believes to have, witnessed such breach of the peace.
 
 558 FORMS PRESCRIBED IN THE CODE. 
 
 CHAPTER XVII. 
 
 FORMS PRESCRIBED BY PART XXV. OF THE CODE. 
 
 1152. The several forms in this Part, varied to suit the case, or forms 
 to the like effect, shall be deemed good, valid and sufficient in cases thereby 
 respectively provided tbr ; and may, when made for one class of officials, 
 be varied so as to apply to any other class having the same jurisdiction. 
 
 FORM 1. 
 
 (Section 629.) 
 
 Information to obtain a Search Warrant. 
 
 Canada, 
 Province of 
 County of 
 
 The information of A. B., of in the said county (yeoman), 
 
 taken this day of , in the year before me, J. S., 
 
 Esquire, a justice of the peace, in and for the district (or county, etc.). 
 of , who says that (describe things to be searched for and 
 
 offence in respect of which search is made), and that he has just and rea- 
 sonable cause to suspect, and suspects, that the said goods and chattels, 
 or some part of them, are concealed in the (dwelling-house, etc.) of C. D.. 
 of , in the said district (or county, etc.), (here add the causes 
 
 of suspicion, whatever they may be) : Wherefore (he) prays that a search 
 warrant may be granted to him to search the (dwelling-house, etc.), or" the 
 said C. D., as aforesaid, for the said goods and chattels so stolen, taken 
 and carried away as aforesaid (or as the case may be). 
 
 Sworn (or affirmed) before me the day and year first above mentioned, 
 at in the said county of 
 
 J. S., 
 J. P., (name of district or county, etc.). 
 
 FORM 2. 
 (Section 630.) 
 
 Warrant to Search. 
 
 Canada, 
 
 Province of . * 
 
 County of . J 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas it appears on the oath of A. B.. of . that there is 
 
 reason to suspect that (describe things to be searched for and offence in 
 respect of irhich search is made) are concealed in at
 
 SEARCH WARRANT INFORMATION AND COMPLAINT. 559 
 
 This is, therefore, to authorise and require you to enter between the 
 hours of (as the justice shall direct) into the said premises, and to search 
 for the said things, and to bring the same before me or some other justice. 
 
 Dated at , in the said county of this day 
 
 of , in the year 
 
 J. S., 
 
 J. P., (name of county). 
 To of 
 
 FORM 2A. 
 (Section 629A.) 
 
 Backing of Search Warrant. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 " Whereas proof upon oath has this day been made before me, a 
 justice of the peace in and for the said county of , that the 
 
 name of J. S. to the within warrant subscribed is of the handwriting "of 
 the justice of the peace within mentioned, I do, therefore, hereby authorize 
 W. T., who brings me this warrant and all other persons to whom this 
 warrant was originally directed or by whom it may be lawfully executed, 
 and also all peace officers of the said county of , to execute the 
 
 same within the said county of 
 
 "J. S., 
 
 " J. P., (name of county)." 
 
 FORM 3. 
 
 (Section 654.) 
 
 Information and Complaint for an Indictable Offence. 
 
 Canada, 
 Province of 
 County of 
 
 The information and complaint of C. D., of (yeoman), taken 
 
 this day of _ , in the year , before the under- 
 
 signed (one) of His Majesty's justices of the peace in and for the said 
 county of , who saith that (etc., stating the offence). 
 
 Sworn before 4me}, the day and year first above mentioned, at 
 
 J. S., 
 
 J. P., (name of county). 
 
 FORM 4. 
 (Section 656). 
 
 Warrant to Apprehend a Person Charged with an Indictable Offence Com- 
 mitted on the High Seas or Abroad. 
 
 For offences committed on the high seas the warrant may be the samt. 
 as in ordinary cases, but describing the offence to .have been committed "on 
 the high seas, out of the body of any district or county of Canada arid 
 u-ithin the jurisdiction of the Admiralty of England."
 
 560 SUMMONS WABRANT OF ARREST. 
 
 For offences committed abroad for which the parties may be indicted 
 in Canada, the warrant also may be the same as in ordinary cases, but 
 
 describing the offence to have been committed " on land oat of Canada, to 
 
 wit: at in the Kingdom of , or, at , in 
 
 the Island of , in the West Indies, or at , in the 
 East Indies," or as the case may be. 
 
 FORM 5. 
 (Section 658.) 
 
 /Summons to a Person Charged with an Indictable Offence. 
 
 Canada, 
 Province of 
 County of 
 
 To A. B., of , (labourer) : 
 
 Whereas you have this day been charged before the undersigned 
 
 , a justice of the peace in and for the said county of 
 for that you on , at , (stating shortly the offence) : 
 
 These are therefore to command you, in His Majesty's name, to be and 
 appear before (me) on , at o'clock in the (fore) 
 
 noon, at , or before such other justice or justices of the peace 
 
 for the same county of , as shall then be there, to answer to 
 
 the said charge, and to be further dealt with according to law. Herein fail 
 not. 
 
 Given under (my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 FOBM 6. 
 (Section 659.) 
 
 Warrant in the first instance to apprehend a Person charged with an 
 Indictable Offence. 
 
 Canada, 
 Province of 
 County of 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas A. B., of , (labourer), has this day been charged 
 
 upon oath before the undersigned , a justice of the peace in 
 
 and for the said county of . for that he, on , at 
 
 , did (etc., stating shortly the offence) : These are, therefore. 
 to command you, in His Majesty's name, forthwith to apprehend the said 
 A. B., and to bring him before (me) or some other justice of the peace in 
 and for the said county of , to answer unto the said charge, 
 
 and to be further dealt with according to law. 
 
 Given under (my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., 
 
 J. P., (name of county).
 
 WARRANT WHEN SUMMONS DISOBEYED. 561 
 
 FORM 7. 
 (Section 660.) 
 
 Warrant when the Summons is disobeyed. 
 
 Canada, 
 Province of 
 County of 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas on the day of , (instant or last past) 
 
 A. B., of , was charged before (me or us), the undersigned (or 
 
 name the justice or justices, or as the case may be), (a) justice of the 
 peace in and for the said county of , for that (etc., as in the 
 
 summons) ; and whereas I (or he the said justice of the peace, or we or they 
 the said justices of the peace) did then issue (my, our, his or their) sum- 
 mons to the said A. B., commanding him, in His Majesty's name, to be and 
 appear before (me) on , at o'clock in the (fore) 
 
 noon, at , or before such other justice or justices of the peace 
 
 as should then be there, to answer to the said charge and to be further dealt 
 with according to law ; and whereas the said A. B. has neglected to be or 
 appear at the time and place appointed in and by the said summons, although 
 it has now been proved to (me) upon oath that the said summons was duly 
 served upon the said A. B. : These are therefore to command you in His 
 Majesty's name, forthwith to apprehend the said A. B., and to bring him 
 before (me) or some other justice of the peace m and for the said county 
 of , to answer the said charge, and to be further dealt with 
 
 according to law. 
 
 Given under (my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 FORM 8. 
 (Section 662.) 
 
 Endorsement in Backing a Warrant. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 Whereas proof upon oath has this day been made before me , 
 
 a justice of the peace in and for the said county of , that the 
 
 name of J. S. to the within warrant subscribed, is of the handwriting of 
 the justice of the peace within mentioned ; I do therefore hereby authorize 
 W. T. who brings to me this warrant and all other persons, to whom this 
 warrant was originally directed, or by whom it may be lawfully executed, 
 and also all peace officers of the said county of , to execute the 
 
 same within the said last mentioned county. 
 
 Given under my hand, this day of , in the year , 
 
 at , in the county aforesaid. 
 
 J. T,., 
 
 J. P., (name of county). 
 C.C.P. 36
 
 562 WARRANT FOB ANOTHER COUNTY RECEIPT. 
 
 FORM 9. 
 (Section 665.) 
 
 Warrant to convey before a Justice of another County. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas information upon oath was this day made before the under- 
 signed that A. B., of , on the day of , in the 
 year , at , in the county (state the charge). 
 
 And whereas I have taken the deposition of X. Y. as to the said offence. 
 
 And whereas the charge is of an offence committed in the county of 
 
 This is to command you to convey the said (name of accused), of 
 , before some justice of the last-mentioned county, near the 
 above place, and to deliver to him this warrant and the said deposition. 
 
 Dated at , in the said county of , this 
 
 day of , in the year 
 
 J. S., 
 
 J. P., (name of county). 
 
 To of 
 
 FOBM 10. 
 
 (Section 666.) 
 
 Receipt to be given to the Constable by the Justice for the County in which 
 the Offence was committed. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 I, J. L., a justice of the peace in and for the county of , 
 
 hereby certify that W. T., peace officer of the county ol has, on 
 
 this day of , in the year , by virtue 
 
 of and in obedience to a warrant of J. S., Esquire, a justice of the peace 
 in and for the county of , produced before me one A. B., charged 
 
 before the said J. S. with having (etc., stating shortly the offence) and 
 delivered him into the custody of , by my direction to answer 
 
 to the said charge, and further to be dealt with according to law, and has 
 also delivered unto me the said warrant, together with the information (if 
 any) in that behalf, and the deposition (a) of C. D. (and of ) 
 
 in the said warrant mentioned, and that he has also proved to me, upon 
 oath, the handwriting of the said J. S., subscribed to the same. 
 
 Dated the day and year first above mentioned, at , in the said 
 
 county of 
 
 J. L., 
 
 J. P., (name of county).
 
 SUBPCENA FOR WITNESS WARRANT FOR WITNESS. 563 
 
 FOBM 11. 
 (Section 671.) 
 
 Summons to a Witness. 
 
 Canada, 
 
 Province of , r 
 
 County of . J 
 
 To E. F., of , (labourer) : 
 
 Whereas information has been laid before the undersigned , 
 
 a justice of the peace in and for the said county of , that A. 
 
 B., (etc., as in the summons or warrant against the accused), and it has 
 been made to appear to me that you are likely to give material evidence for 
 (the prosecution or for the accused) : These are therefore to require you 
 to be and to appear before me, on next, at o'clock in 
 
 the (fore) noon, at , or before such other justice or justices of 
 
 the peace of the said county of , as shall then be there, to 
 
 testify what you know concerning the said charge so made against the said 
 A. B. as aforesaid. Herein fail not. 
 
 Given under my hand and seal, this day of , in 
 
 the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 FOBM 12. 
 (Section 673.) 
 
 Warrant when a Witness has not obeyed the Summons. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas information having been laid before , a justice of 
 
 the peace, in and for the said county of , that A. B. (etc., at 
 
 in the summons) ; and it having been made to appear to (me) upon oath 
 that E. F., of , (labourer), was likely to give material evi- 
 
 dence for (the prosecution), (I) duly issued (my) summons to the said E. 
 F., requiring him to be and appear before (me) on , at , 
 
 or before such other justice or justices of the peace for the said county, as 
 should then be there, to testify what he knows respecting the said charge 
 so made against the said A. B., as aforesaid ; and whereas proof has this 
 day been made upon oath before (me) of such summons having been duly 
 served upon the said E. F. ; and whereas the said E. F. has neglected to 
 appear at the time and place appointed by the said summons, and no just 
 excuse has been offered for such neglect : These are therefore to command 
 you to bring and have the said E. F. before {me) on at 
 
 o'clock in the (fore) noon, at , or before such other justice or 
 
 justices for the said county, as shall then be there, to testify what he 
 knows concerning the said charge so made against the said A. B. as 
 aforesaid. 
 
 Given under (my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county).
 
 564 CONVICTION FOR CONTEMPT WARRANT FOR WITNESS. 
 
 FORM 13. 
 
 Conviction for Contempt. 
 (Sections 674 and 842.) 
 
 Canada, 
 
 Province of , > 
 
 County of . J 
 
 Be it remembered that on the day of , in the 
 
 year , in the county of , E. F. is convicted before 
 
 me, for that he the said E. F. did not attend before me to give evidence on 
 the trial of a certain charge against one A. B. of theft (or as the case may 
 fee), although duly subpoenaed (or bound by recognizance to appear and 
 give evidence in that behalf, as the case may 6e) but made default therein, 
 and has not shewn before me any sufficient excuse for such default, and I 
 adjudge the said E. F., for said offence, to be imprisoned in the common 
 jail of the county of , at , for the space of , 
 
 there to be kept with (or without) hard labour (as may be authorized and 
 determined, and in case a fine is also intended to be imposed, then proceed) 
 and I also adjudge that the said E. F. do forthwith pay to and for the use 
 of His Majesty a fine of dollars, and in default of payment, that 
 
 said fine, with the cost of collection, be levied by distress and sale of goods 
 and chattels of the said E. F. (or in case a fine alone is imposed, then 
 the clause of imprisonment is to be omitted). 
 
 Given under my hand at , in the said county of , 
 
 the day and year first above mentioned. 
 
 O. K., 
 
 Judge. 
 
 FORM 14. 
 (Section 675.) 
 
 Warrant for a Witness in the First Instance. 
 
 Canada, \ 
 
 Province of , 
 
 County of . ) 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas information has been laid before the undersigned , 
 
 a justice of the peace, in and for the said county of , that (etc., 
 
 as in the summons) ; and it having been made to appear to (me) upon oath,, 
 that E. F. of (labourer), is likely to give material evidence for 
 
 the prosecution, and that it is probable that the said E. F. will not attend 
 to give evidence unless compelled to do so : These are therefore to command 
 you to bring and have the said E. F. before (me) on , at 
 
 o'clock in the (fore) noon, at , or before such other justice or 
 
 justice of the peace for the same county, as shall then be there, to testify 
 what he knows concerning the said charge so made against the said A. B. 
 as aforesaid. 
 
 Given under (my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county).
 
 WARRANTS FOR DEFAULTING WITNESSES. 565 
 
 FOBM 15. 
 (Section 677.) 
 
 Canada, 
 Province of 
 County of 
 
 Warrant when a Witness has not obeyed the Subpoena. 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas information having been laid before , a justice of 
 
 the peace, in and for the said county, that A. B. (etc., as in the summons) ; 
 and there being reason to believe that E. F., of , in the pro- 
 
 vince of , (labourer), was likely to give material evidence for 
 
 (the prosecution), a writ of subpoena was issued by order of , 
 
 Judge of (name of Court), to the said E. F., requiring him to be and 
 appear before (me) on , at , or before such other 
 
 justice or justices of the peace for the same county, as should then be 
 there, to testify what he knows respecting the said charge so made against 
 the said A. B., as aforesaid ; and whereas proof has this day been made 
 upon oath before (me) of such writ of subpoena having been duly served 
 upon the said E. F. ; and whereas the said E. F. has neglected to appear at 
 the time and place appointed by the said writ of subpoena, and no just 
 excuse has been offered for such neglect: These are therefore to command 
 you to bring and have the said E. F. before (me) on , at 
 
 o'clock in the (fore) noon, at , or before such other justice or 
 
 justices for the said county as shall then be there, to testify what he 
 knows concerning the said charge so made against the said A. B. as afore- 
 said. 
 
 Given under (my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 FORM 16. 
 (Section 678.) 
 
 Warrant of Commitment of a Witness for Refusing to be Sworn or to Give 
 
 Evidence. 
 Canada, 
 Province of 
 County of 
 
 To all or any of the constables and other peace officers in the county of 
 , and to the keeper of the common gaol at , 
 
 in the said county of 
 
 Whereas A. B. was lately charged before , a justice of the 
 
 peace in and for the said county of , for that (etc., as in the 
 
 summons) ; and it having been made to appear to (me) upon oath that 
 E. F., of , was likely to give material evidence for the prosecu- 
 
 tion, (/) duly issued (my) summons to the said E. F., requiring him to 
 be and appear before me on , at , or before such 
 
 other justice or justices of the peace for the said county as should then 
 be there, to testify what he knows concerning the said charge so made 
 against the said A. B. as aforesaid ; and the said E. F. now appearing 
 before (me) (or being brought before (me) by virtue of a warrant in that 
 behalf), to testify as aforesaid, and being required to make oath or affirma- 
 tion as a witness in that behalf, now refuses so to do (or being duly sworn 
 as a witness now refuses to answer certain questions concerning the pre- 
 mises which are now here piit to him, and more particularly the following 
 ) without offering any just excuse for such refusal : These
 
 566 WABRANT REMANDING PRISONER. 
 
 are therefore to command you, the said constables or peace officers, or any 
 one of you, to take the said E. F. and him safely to convey to the common 
 gaol at , in the county aforesaid, and there to deliver him to the 
 
 keeper thereof, together with this precept: 'And I do hereby command you, 
 the said keeper of the said common gaol, to receive the said E. F. into your 
 custody in the said common gaol, and him there safely keep for the space 
 of days, for the said contempt, unless in the meantime he con- 
 
 sents to be examined, and to answer concerning the premises ; and for your 
 so doing, this shall be your sufficient warrant. 
 
 Given under (my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 FORM 17. 
 (Section 679.) 
 
 Warrant Remanding a Prisoner. 
 
 Canada, 
 
 Province of , / 
 
 County of . J 
 
 To all or any of the constables and other peace officers in the said county 
 of , and to the keeper of the common gaol at 
 
 in the said county. 
 
 Whereas A. B. was this day charged before the undersigned , 
 
 a justice of the peace in and for the said county of , for that 
 
 (etc., as in the warrant to apprehend), and it appears to (me) to be neces- 
 sary to remand the said A. B. : These are therefore to command you, the 
 said constables and peace officers, or any of you, in His Majesty's name, 
 forthwith to convey the said A. B. to the common gaol at , in 
 
 the said county, and there to deliver him to the keeper thereof, together 
 with this precept: And I hereby command you the said keeper to receive 
 the said A. B. into your custody in the said common gaol, and there safely 
 keep him until the day of (instant), when I hereby 
 
 command you to have him at , at o'clock in the 
 
 (fore) noon of the same day before (me) or before such other justice or 
 justices of the peace for the said county as shall then be there, to answer 
 further to the said charge, and to be further dealt with according to law, 
 unless you shall be otherwise ordered in the meantime. 
 
 Given under (my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 FORM 18. 
 (Section 681.) 
 
 Recognisance of Bail instead of Remand on an Adjournment of Examination. 
 
 Canada, 
 
 Province of , | 
 
 County of . ) , 
 
 Be it remembered that on the day of , in the 
 
 year , A. B., of , (labourer), L. M., of , 
 
 (grocer), and X. p., of , (butcher), personally came before me, 
 
 , a justice of the peace for the said county, and severally ac- 
 knowledged themselves to owe to our Sovereign Lord the King, his heirs 
 and successors, the several sums following, that is to say : The said A. B. 
 the sum of , and the said L. M., and N. O., the sum
 
 BAIL ON REMAND DEPOSITION OF WITNESS. 567 
 
 each, of good and lawful current money of Canada, to be made and levied 
 of their several goods and chattels, lands and tenements respectively, to the 
 use of our Lord the King, his heirs and successors, if he, the said A. B., 
 fails in the condition endorsed (or hereunder written). 
 
 Taken and acknowledged the. day and year first above mentioned, at 
 before me. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 Condition. 
 
 The condition of the within (or above written recognizance) is such 
 that whereas the within bounden A. B. was this day (or on last 
 
 past) charged before me for that (etc., as in the warrant) ; and whereas the 
 examination of the witnesses for the prosecution in this behalf is adjourned 
 until the day of (instant) : If therefore, the said 
 
 A. B. appears before me on the said day of (instant), 
 
 at o'clock in the (fore) noon, or before such other justice or 
 
 justices of the peace for the said county as shall then be there, to answer 
 (further) to the said charge, and to be further dealt with according to law, 
 the said recognizance to be void, otherwise to stand in full force and virtue. 
 
 FORM 19. 
 (Section 682.) 
 
 Deposition of a Witness. 
 
 Canada, 
 Province of 
 County of 
 
 The deposition of X. Y., of , taken before the undersigned, 
 
 a justice of the peace for the said county of , this 
 
 day of , in the year , at (or after notice 
 
 to C. D. who stands committed for ) in the presence and hear- 
 
 ing of C. !>., who stands charged that (state the charge). The said depon- 
 ent saith on his (oath or affirmation) as follows. (Insert deposition as 
 nearly as possible in words of witness). 
 
 (If depositions of several witnesses are taken at the same time, they 
 may be taken and signed as follows) : 
 
 The depositions of X. of , Y. of , Z. of , 
 
 etc., taken in the presence and hearing of C. D., who stands charged that 
 
 The deponent X. (on his oath or affirmation) says as follows: 
 
 The deponent Y. (on his oath or affirmation) says as follows: 
 
 The deponent Z. (on his oath, etc., etc.) 
 (The signature of the justice may be appended as follows) : 
 
 The depositions of X., Y., Z., etc., written on the several sheets of 
 paper, to the last of which my signature is annexed, were taken in the 
 presence and hearing of O. D., and signed by the said X., Y., Z., etc., 
 respectively in his presence. In witness whereof I have in the presence of 
 the said C. D. signed my name. 
 
 J. S., 
 
 J. P., (name of county). 
 
 FORM 20. 
 
 (Section 684.) 
 
 Statement of the Accused. 
 
 Canada, 
 Province of 
 County of 
 
 A. B. stands charged before the undersigned , a justice of 
 
 the peace in and for the county aforesaid, this day of , 
 
 in the year , for that the said A. B., on , at
 
 568 STATEMENT OF ACCUSED RECOGNIZANCE COMMITMENT. 
 
 (etc., as in the captions of the depositions) ; and the said charge being read 
 to the said A. B., and the witnesses for the prosecution, C. D. and E. F., 
 being severally examined in his presence, the said A. B. is now addressed 
 by me as follows: 
 
 ' Having heard the evidence, do you wish to say anything in answer 
 to the charge? You are not obliged to say anything unless you desire to 
 do so ; but whatever you say will be taken down in writing, and may be 
 given in evidence against you at your trial. You must clearly understand 
 that you have nothing to hope from any promise of favour, and nothing 
 to fear from any threat which may have been held out to induce you to 
 make any admission or confession of guilt, but whatever you now say may 
 be given in evidence against you upon your trial, notwithstanding such pro- 
 mise or threat.' Whereupon the said A. B. says as follows : (Here state 
 whatever the prisoner says and in his very words, as nearly as possible. 
 Get him to siffn it if he will). 
 
 A. B. 
 
 Taken before me, at , the day and year first above men- 
 
 tioned. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 FOBM 2]. 
 (Section 688.) 
 
 Form of Recognizance where the Prosecutor requires the Justice to bind 
 him over to prosecute after the charge is dismissed. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 Whereas C. D. was charged before me upon the information of E. F., 
 that C. D. (state the charge), and upon the hearing of the said charge I 
 discharged the said C. D., and the said E. F. desires to prefer an indict- 
 ment against the said C. D. respecting the said charge, and has required me 
 to bind him over to prefer such an indictment at (here describe the next 
 practicable sitting of the Court by which the person discharged would be 
 tried if committed). 
 
 The undersigned E. F. hereby binds himself to perform the following 
 obligation, that is to say, that he will prefer and prosecute an indictment 
 respecting the said charge against the said C.,D. at (as above). And the 
 said E. F. acknowledges himself bound to forfeit to the Crown the sum 
 of $ in case he fails to perform the said obligation. 
 
 E. F. 
 
 Taken before me. 
 
 J. S., 
 
 J. P., (name of county). 
 
 FORM 22. 
 
 (Section 690.) 
 
 Warrant of Commitment. 
 
 Canada, 
 
 County of . 
 
 Province of , 
 
 To all or any of the constables and other peace officers of , and 
 
 to the keeper of the (common gaol) at , in the said 
 
 county of 
 
 Whereas A. B. was this day charged before me, J. S., one of His 
 Majesty's justices of the peace in and for the said county of , 
 
 on the oath of C. D. of , (farmer), and others, for that (etc.,
 
 RECOGNIZANCES TO PROSECUTE AND GIVE EVIDENCE. 569 
 
 stating shortly the offence) : These are therefore to command you the said 
 constable to take the said A. B., and him safely to 'convey to the (common 
 gaol) at aforesaid, and there to deliver him to the keeper thereof, 
 
 together with this precept? And I do hereby command you the said keeper 
 of the said (common gaol) to receive the said A. B. into your custody in 
 the said (common gaol), and there safely keep him /until he shall be thence 
 delivered by due course of law. 
 
 Given under my hand ' and sel this day of , in 
 
 the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 FORM 23. 
 (Section 692.) 
 
 Recognizance to Prosecute : 
 
 Canada, ~J 
 
 Province of , 
 
 County of . J 
 
 Be it remembered that on the day of , in the 
 
 year , C. D., of , in the of , 
 
 in the said county of , (farmer), personally came before me 
 
 , a' justice of the peace in and for the said county of , 
 
 and acknowledged himself to owe to our Sovereign Lord the King, his heirs 
 and successors, the sum of , of good and .'lawful current money 
 
 of Canada, to be made and levied of his goods and chattels, lands and tene- 
 ments, ! to the use of our said Sovereign Lord the King, his heirs and suc- 
 cessors, if the said C. D. fails in the condition endorsed (or hereunder 
 written). v 
 
 Taken and acknowledged the day and year first above mentioned, at 
 , before me. 
 
 J. S., 
 J. P., (name of county). 
 
 i Condition to Prosecute. 
 
 The condition of the within (or above) written recognizance is such 
 that whereas one A. B. was this day charged before me, J. S., a justice of 
 the peace within mentioned, for that (etc., as. in the caption of the deposi- 
 tions) ; if, therefore, he the said C. D. appears at the Court by which the 
 said A.'B. is or shall be tried* and there duly prosecutes such charge then 
 the said recognizance to be void, otherwise to stand in full force and virtue. 
 
 FOBM 24. 
 (Section 692.) 
 
 Recognisance to Prosecute and give Evidence. 
 
 (Same as last form, to the asterisk,* and then thus) : And there duly 
 prosecutes such charge against the said A. B. for the; offence aforesaid, and 
 gives evidence thereon, as well to the jurors who shall then inquire into the 
 said offence, as also to them who shall pass upon the trial of the said A. B., 
 then the said recognizance to be void, or else to stand in full force and 
 virtue.
 
 570 COMMITMENT AND DISCHARGE OF WITNESS. 
 
 FOBM 25. 
 (Section 692.) 
 
 Recognisance to give Evidence. 
 
 (Same as form 2S to the asterisk* and then thus) : And there gives 
 such evidence as he knows upon the charge to be then and there preferred 
 against the said A. B. for the offence aforesaid, then the said recognizance 
 to be void, otherwise to remain in full force and virtue. 
 
 FOBM 26. 
 (Section 694.) 
 
 Commitment of a Witness for Refusing to Enter into the Recognizance. 
 
 :\ 
 
 Canada, 
 Province of 
 County of 
 
 To all or any of the peace officers in the said county of , and to 
 
 the keeper of the common gaol of the said county of , at , 
 
 in the said county of 
 
 Whereas A. B. was lately charged before the undersigned (name of the 
 justice of the peace), a justice of the peace in and for the said county of 
 , for that (etc., as in the summons to the witness), and it having 
 been made to appear to (me) upon oath that E. F., of , was likely 
 
 to give material evidence for the prosecution, (/) duly issued (my) sum- 
 mons to the said E. F., requiring him to be and appear before (me) on 
 , at or before such other justice or justices of the peace 
 
 as should then be there, to testify what he knows concerning the said 
 charge so made against the said A. B. as aforesaid ; and the said' E. F. 
 now appearing before (me) (or being brought before (me) by virtue of a 
 warrant in that behalf to testify as aforesaid), has been now examined 
 before (me) touching the premises, but being by (me) required to enter 
 into a recognizance conditioned to give evidence against the said A. B., 
 now refuses so to do: These are therefore to command you the said peace 
 officers, or any one of you, to take the said E. F. and him safely convey to 
 the common gaol at , in the county aforesaid, and there delivnr 
 
 him to the said keeper thereof, together with this precept : And I do hereby 
 command you, the said keeper of the said common gaol, to receive the said 
 E. F. into your custody in the said common gaol, there to imprison and 
 safely keep him until after the trial of the said A. B. for the offence afore- 
 said, unless in the meantime the said E. F. duly enters into such recogni- 
 zance as aforesaid, in the sum of before some one justice of the 
 peace for the said county, conditioned in the usual form to appear at the 
 Court by which the said A. B. is or shall be tried, and there to give evidence 
 upon the charge which shall then and there be preferred against the said 
 A. B. for the offence aforesaid. 
 
 Given under my hand and seal, this day of , in 
 
 the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 FORM 27. 
 (Section 694.) 
 
 Order Discharging Witness, when Accused Discharged. 
 
 :\ 
 
 Canada, 
 Province of 
 County of 
 
 To the keeper of the common gaol at , in the county of , 
 
 aforesaid. 
 
 Whereas by (my) order dated the day of (instant) recit- 
 ing that A. B. was lately before then charged before (me) for a certain
 
 RECOGNIZANCE OF BAIL. 571 
 
 offence therein mentioned, and that E. F. having appeared before (me) 
 and being examined as a witness for the prosecution on that behalf, refused 
 to enter into recognizance to give evidence against the said A. B., and I 
 therefore thereby committed the said E. F. to your custody, and required 
 you safely to keep him until after the trial of the said A. B. for the offence 
 aforesaid, unless in the meantime he should enter into such recognizance as 
 aforesaid ; and whereas for want of sufficient evidence against the said 
 A. B., the said A. B. has not been committed or holden to bail for the said 
 offence, but on the contrary thereof has been since discharged, and it is 
 therefore not necessary that the said E. F. should be detained longer 1 in 
 your custody : These are therefore to order and direct you the said keeper 
 to discharge the said E. F. out of your custody, as to the said commitment, 
 and suffer him to go at large. 
 
 Given under (my) hand and seal, this day of 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAI,.] 
 
 J. P., (name of county). 
 
 FORM 28. 
 (Section 696.) 
 
 Recognizance of Bail. 
 
 Canada, ) 
 
 Province of , J. 
 
 County of . J 
 
 Be it remembered that on the day of , in the year 
 
 , A. B. of , (labourer), L. M. of (grocer), and 
 
 N. O. of , (butcher), personally came before (us) the undersigned, 
 
 (two) justices of the peace for the county of , and severally ack- 
 
 nowledged themselves to owe to our Sovereign Lord the King, his heirs and 
 successors, the several sums following, that is to say : the said A. B., the 
 sum of , and the said L. M. and N. O. the sum of , each, 
 
 of good and lawful current money of Canada, to be made and levied of 
 their several goods and chattels, lands and tenements respectively, to the 
 use of our said Sovereign Lord the King, his heirs and successors, if he, 
 the said A. B., fails in the condition endorsed (or hereunder written). 
 
 Taken and acknowledged the day and year first above mentioned, at 
 , before us. 
 
 J. S., 
 J. N.. 
 
 J. P., (name of county). 
 
 The condition of the within (or above) written recognizance is such 
 that whereas the said A. B. was this day charged before (us), the justices 
 within mentioned for that (etc., as in the warrant) ; if, therefore, the said 
 A. B. appears at the next Superior Court of Criminal Jurisdiction (or 
 Court of General or Quarter Sessions of the Peace) to be holden in and for 
 the county of , and there surrenders himself into the custody of 
 
 the keeper of the common gaol (or lock-up house) there, and pleads to 
 such indictment as may be found against him by the grand jury, for and in 
 respect to the charge aforesaid, and takes his trial upon the same, and does 
 not depart the said Court without leave, then the said recognizance to be 
 void, otherwise to stand in full force and virtue.
 
 572 WABRANT OF DISCHARGE WHEN BAIL GIVEN. 
 
 FOBM 29. 
 (Section 698.) 
 
 Warrant of Deliverance on Bail being given for a Prisoner already 
 
 Committed. 
 
 Canada, ^ 
 
 Province of , 
 
 County of 
 
 To the keeper of the common gaol of the county of , at , 
 
 in the said county. 
 
 Whereas A. B. late of , (labourer), has before (us) (two) 
 
 justices of the peace in and for the said county of , entered into his 
 
 own recognizance, and found sufficient sureties for his appearance at the 
 next Superior Court of Criminal Jurisdiction (or Court of General or 
 Quarter Sessions of the Peace), to be holden in and for the county of , 
 
 to answer our Sovereign Lord the King, for that (etc., as in the commit- 
 ment), for which he was taken and committed to your said common gaol. 
 These are therefore to command you, in His Majesty's name, that if the 
 said A. B. remains in your custody in the said common gaol for the said 
 cause, and for no other, you shall forthwith suffer him to go at large. 
 
 Given under our hands and seals, this day of , in the 
 
 year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 J. N., [SEAL.] 
 
 J. P., (name of county). 
 
 FOBM 30. 
 (Section 704.) 
 
 Gaoler's Receipt to the Constable for the Prisoner. 
 
 I hereby certify that I have received from W. T., constable, of the 
 
 county of , the body of A. B., together with a warrant under the 
 
 hand and seal of J. S., Esquire, justice of the peace for the said county of 
 
 , and that the said A. B. was sober, (or as the case may be), at 
 
 the time he was delivered into my custody. 
 
 P. K., 
 
 Keeper of the common gaol of the said county. 
 
 FORM 31. 
 
 (Section 727.) 
 
 Conviction for a Penalty to be Levied by Distress, and in Default of 
 Sufficient Distress, by imprisonment. 
 
 Canada, 
 
 Province of , [ 
 
 County of . ) 
 
 Be it remembered that on the day of , in the year 
 
 , at , in the said county, A. B. is convicted before the 
 
 undersigned, , a justice of the peace for the said county, for that 
 
 the said A. B. (etc., stating the offence, and the time and place when and 
 where committed), and I adjudge the said A. B. for his said offence to 
 forfeit and pay the sum of $ (stating the penalty, and also the com- 
 
 pensation, if any), to be paid and applied according to law, and also to pay 
 to the said C. D. the sum of , for his costs in this behalf ; and if 
 
 the said several sums are not paid forthwith, (or on or before the
 
 CONVICTION FOR A PENALTY IMPRISONMENT. 573 
 
 of next), * I order that the same be levied by distress and sale of 
 
 the goods and chattels of the said A. B., and in default of sufficient distress. 
 * I adjudge the said A. B. to be imprisoned in the common gaol of the said 
 county, at , in the said county of , (there to be kept 
 
 at hard labour, if the Act or law authorizes this, and it is so adjudged) for 
 the term of , unless the said several sums and all costs and 
 
 charges of the said distress and of the commitment and of the conveying 
 of the aid A. B. to the said gaol are sooner paid. 
 
 Given under my hand and seal, the day and year first above mentioned, 
 at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of oounty). 
 
 * Or when the issuing of a distress warrant would be ruinous to the 
 defendant and hi& family, or it appears he has no goods whereon to levy a 
 distress, then instead of the words between the asterisks say, ' inasmuch 
 as it is now made to appear to me that the issuing of a warrant of distress 
 in this behalf would be ruinous to the said A. B. and his family,' (or, 
 ' the said A. B. has no goods or 'chattels whereon to levy the said sums 
 by distress '). 
 
 FORM 32. 
 
 (Section 727.) 
 
 Conviction for a Penalty, and in Default of Payment, Imprisonment. 
 
 Canada, > 
 
 Province of , ! 
 
 County of . ) 
 
 Be it remembered that on the day of , in the 
 
 year , at* , in the said county, A. B. is convicted 
 
 before the undersigned, , a justice of the peace for the said 
 
 county, for that he the said A. B. (etc., stating the offence, and the time 
 and place when and where it was committed), and I adjudge the said A. B. 
 for his said offence to forfeit and pay the sum of (stating the 
 
 penalty and compensation, if any) to be paid and applied according to law ; 
 and also to pay to the said C. D. the sum of for his costs in 
 
 this behalf; and if the said several sums are not paid forthwith (or, on or 
 before next), I adjudge the said A. B. to be imprisoned in the 
 
 common gaol of the said county, at , in the said county 
 
 of (and there to be kept at hard labour, if the Act or law 
 
 authorises this, and it is so adjudged) for the term of , unless 
 
 the said sums and the costs and charges ofl the commitment and of the 
 conveying of the said A. B. to the said common gaol are sooner paid. 
 
 Given under my hand and seal, the day and year first above mentioned 
 at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 /. P., (name of oounty). 
 
 FOBM 33. 
 (Section 727.) 
 
 Conviction when the Punishment is by Imprisonment, etc. 
 
 Canada, 
 Province of 
 
 County of 
 
 Be it remembered that on the day of , in the 
 
 year , at , in the said county, A. B. is convicted 
 
 before the undersigned, , a justice of the peace in and for the
 
 574 ORDER FOR PAYMENT TO BE LEVIED BY DISTRESS. 
 
 said county, for that he the said A. B. (etc., stating the offence, and the 
 time and place when and where it was committed) ; and I adjudge the said 
 A. B. for his said offence to be imprisoned in the common gaol of the said 
 county, at , in the county of , (and there to be kept 
 
 at hard labour, if the Act or law authorizes this, and it is so adjudged) for 
 the term of ; and I also adjudge the said A. B. to pay to the 
 
 said C. D. the sum of , for his costs in this behalf, and if the 
 
 said sum for costs is not paid forthwith (or on or before next), 
 
 then * I order that the said sum be levied by distress and sale of the goods 
 and chattels of the said A. B. ; and in default of sufficient distress in that 
 behalf,* I adjudge the said A. B. to be imprisoned in the said common gaol 
 (and kept there at hard labour, if the Act or law authorizes this, and it is 
 so adjudged) for the term of , to commence at and from the 
 
 expiration of the term of his imprisonment aforesaid, unless the said sum 
 for costs and the costs and charges of the commitment and of the conveying 
 of the said A. B. to gaol are sooner paid. 
 
 Given under my hand and seal, the day and year first above mentioned 
 at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 * Or when the issuing of a distress warrant would be ruinous to the 
 defendant and his family, or it appears that he has no goods whereon to levy 
 a distress, then, instead of the words between the asterisks * * say, ' inas- 
 much as it is now made to appear to me that the issuing of a warrant of 
 distress in this behalf would be ruinous to the said A. B. and his family,' 
 (or 'that the said A. B. has no goods or chattels whereon to levy the said 
 sum for costs by distress ' ) . 
 
 FOBM 34. 
 (Section 727.) 
 
 Order for Payment of Money to be Levied by Distress, and in Default of 
 Distress, Imprisonment. 
 
 Province of 
 
 Canada, 
 
 County of . } 
 
 Be it remembered that on , a complaint was made before 
 
 the undersigned, , a justice of the peace in and for the said 
 
 county of , for that (stating the facts entitling the complainant 
 
 to the order, with the time and place when and where they occurred), and 
 now at this day, to wit, on , at , the parties afore- 
 
 said appear before me the said justice (or the said C. D. appears before me 
 the said justice, but the said A. B., although duly called, does not appear 
 by himself, his counsel or attorney, and it is now satisfactorily proved to me 
 on oath that the said A. B. was duly served with, the summons in this 
 behalf, which required him to be and appear here on this day before me or 
 such justice or justices of the peace for the county, as should now be here, 
 to answer the said complaint, and to be further dealt with according to law ) ; 
 and now having heard the matter of the said complaint, I do adjudge the said 
 A. B. to pay to the said C. D. the sum of forthwith (or on or 
 
 before next, or as the Act or law requires), and also to pay to 
 
 the said C. D. the sum of for his costs in this behalf; and if the 
 
 said several sums are not paid forthwith (or on or before next), 
 
 then,* I hereby order that the same be levied by distress and sale of the 
 goods and chattels of the said A. B. and in default of sufficient distress in 
 that behalf * I adjudge the said A. B. to be imprisoned in the common gaol 
 of the said county, at , in the said county of , (and 
 
 there kept at hard labour, if the Act or law authorizes this, and it is so 
 adjudged) for the term of , unless the said several sums and all 
 
 costs and charges o the said distress and of the commitment and of the 
 conveying of the said A. B. to the said common gaol are sooner paid.
 
 ORDER FOR PAYMENT OF MONEY. 575 
 
 Given under my hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 * Or when the issuing of a distress warrant would 'be ruinous to the 
 defendant and his family, or it appears that he has no goods whereon to levy 
 a distress, then, instead of the words between the asterisks * * say, ' inas- 
 much as it is now made to appear to me that the issuing of a warrant of 
 distress in this behalf would be ruinous to the said A. B. and his family,' 
 (or ' that the said A. B. has no goods or chattels whereon to levy the said 
 sums by distress'). 
 
 FOKM 35. 
 (Section 727.) 
 
 Order for Payment of Money, and in Default of Payment, Imprisonment. 
 
 Canada, 
 Province of 
 County of 
 
 Be it remembered that on , complaint was made before the 
 
 undersigned, , a justice of the peace in and for the said county 
 
 of , for that (stating the facts entitling the complainant to the 
 
 order, with the time and place when and where they occurred), and now on 
 this day, to wit, on , at , the parties aforesaid appear 
 
 before me the said justice (or the said C. D. appears before me the said 
 justice, but the said A. B., although duly called, does not appear by himself, 
 his counsel or attorney, and it is now satisfactorily proved to me upon oath 
 that the said A. B. was duly served with the summons in this behalf, which 
 required him to be and appear here this day before me, or such justice or 
 justices of the peace for the said county, as should now be here, to answer to 
 the said complaint, and to be further dealt with according to law), and now 
 having heard the matter of the said complaint, I do adjudge the said A. B. 
 to pay to the said C. D. the sum of forthwith (or on or before 
 
 next, or as the Act or law requires), and also to pay to the said 
 C. D. the sum of for his costs in this behalf; and if the said 
 
 several sums are not paid forthwith (or on or before next), then 
 
 I adjudge the said A. B. to be imprisoned in the common gaol of the said 
 county at , in the said county of , (there to be kept 
 
 at hard labour, if the Act or law authorizes this, and it is so adjudged) for 
 the term of , unless the said several sums and the costs and 
 
 charges of the commitment and of the conveying of the said A. B. to the 
 said common gaol are sooner paid. 
 
 Given under my hand and seal, this day of . in 
 
 the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 FOBM 36. 
 (Section 727.) 
 
 Order for any other Matter where the Disobeying of it is Punishable with 
 
 Imprisonment. 
 
 Canada, 1 
 
 Province of , l 
 
 County of . ) 
 
 Be it remembered that on . complaint was made before the 
 
 undersigned, , a justice of the peace in and for the said county 
 
 of , for that (stating the facts entitling the complainant to the 
 
 order, with the time and place where and when they occurred) ; and now on 
 this day, to wit, on , at . the parties aforesaid appear 
 
 before me the said justice (or the said C. D. appears before me the said
 
 576 ORDER DISMISSING INFORMATION. 
 
 justice, but the said A. B., although duly called, does not appear by himself, 
 his counsel or attorney, and it is now satisfactorily proved to me, upon oath, 
 that the said A. B. was duly served with the summons in this behalf, which 
 required him to be and appear here this day before me, or such justice or 
 justices of the peace for the said county, as should now be here, to answer to 
 the said complaint and to be further dealt with according to law) ; and now 
 having heard the matter of the said complaint, I do adjudge the said A. B. 
 to (here state the matter required to be done), and if, upon a copy of the 
 minute of this order being served upon the said A. B., either personally or by 
 leaving the same for him at his last or most usual place of abode, he neglects 
 or refuses to obey the same, in that case I adjudge the said A. B., for such 
 his disobedience, to be imprisoned in the common gaol of the said county, 
 at , in the said county of , (there to be kept at hard 
 
 labour, if the Act or laic authorizes this, and it is so adjudged) for the term 
 of , unless the said order is sooner obeyed, and I do also adjudge the 
 
 said A. B. to pay to the said C. D. the sum of for his costs in this 
 
 behalf, and if the said sum for costs is not paid forthwith (or on or before 
 next), I order the same to be levied by distress and sale of the 
 goods and chattels of the said A. B., and in default of sufficient distress in 
 that behalf I adjudge the said A. B. to be imprisoned in the said common 
 gaol (there to be kept at hard labour, if the Act or law authorizes this, and 
 it is so adjudged) for the space of , to commence at and from the 
 
 termination of his imprisonment aforesaid, unless the said sum for costs is 
 sooner paid. 
 
 Given under my hand and seal, this day of , in 
 
 the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county). 
 
 :\ 
 
 FOEM 37. 
 (Section 730.) 
 
 Form of Order of Dismissal of an Information or Complaint. 
 
 Canada, 
 Province of 
 County of 
 
 Be it remembered that on , information was laid (or com- 
 
 plaint was made) before the undersigned, , a justice of the peace 
 
 in and for the said county of , for that (etc., as in the summons 
 
 of the defendant) and now at this day, to wit, on , at , 
 
 (if at any adjournment insert here : ' to which day the hearing of this case 
 was duly adjourned, of which the said C. D. had due notice,') both the said 
 parties appear before me in order that I should hear and determine the said 
 information (or complaint) (or the said A. B. appears before me, but the 
 said C. D., although duly called, does not appear) ; [whereupon the matter of 
 the said information (or complaint) being by me duly considered, it mani- 
 festly appears to me that the said information (or complaint) is not proved, 
 and] (if the informant or complainant does not appear, these words may be 
 omitted), I do therefore dismiss the same, and do adjudge that the said C. D. 
 do pay to the said A. B. the sum of , for his costs incurred by 
 
 him in defence in his behalf ; ; and if the said sum for costs is not paid forth- 
 with (or on or before ), I order that the same be levied by 
 distress and sale of the goods and chattels of the said C. D., and in default of 
 sufficient distress in that behalf, I adjudge the said C. D. to be imprisoned 
 in the common gaol of the said county of , at , in 
 the said county of (and there kept at hard labour, if the Act or 
 law authorizes this, and it is so adjudged) for the term of , unless 
 the said sum for costs, and all costs and charges of the said distress and of 
 the commitment and of the conveying of the said C. D. to the said common 
 gaol are sooner paid. 
 
 Given under my hand and seal, this day of , in 
 
 the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county.)
 
 CERTIFICATE OP DISMISSAL WARRANT OF DISTRESS. 577 
 
 FORM 38. 
 (Section 730.) 
 
 Form of Certificate of Dismissal. 
 
 Canada, ] 
 
 Province of , - 
 
 County of . ) 
 
 I hereby certify that an information (or complaint) preferred by C. D. 
 against A. B. for that (etc., as in the summons) was this day considered by 
 me, a justice of the peace in and for the said county of , and was 
 
 by me dismissed (with costs). 
 
 , this day of , in the year 
 
 J. S., 
 
 J. P., (name of county.) 
 
 FOBM 39. 
 (Section 741.) 
 
 Warrant of Distress upon a Conviction for a Penalty. 
 
 Canada, 
 Province of 
 County of 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas A. B., late of , (labourer), was on this day (or 
 
 on last past) duly convicted before , a justice of the 
 
 peace, in and, for the said county of , for that (stating the offence, 
 
 as in the conviction), and it was thereby adjudged that the said A. B. should 
 for such his offence, forfeit and pay (etc., as in the conviction), and should 
 also. pay to the said C. D. the sum of , for his costs in that 
 
 behalf : and it was thereby ordered that if the said several sums were not 
 paid (forthwith) the same* should be levied by distress and sale of the goods 
 and chattels of the said A. B., and it was thereby also adjudged that the said 
 A. B., in default of sufficient distress, should be imprisoned in the common 
 gaol of the said county at , in the said county of 
 
 (and there kept at hard labour if the conviction so adjudges) for the space 
 of , unless the said several sums and all costs and charges of the 
 
 said distress, and of the commitment and conveying of the said A. B. to the 
 said common gaol were sooner paid ; *And whereas the said A. B., being so 
 convicted as aforesaid, and being (now) required to pay the said sums of 
 and has not paid the same or any part thereof, but 
 
 therein has made default: These are, therefore, to command you in His 
 Majesty's name forthwith to make distress of the goods and chattels of the 
 said A. B. ; and if within days next after the making of such 
 
 distress, the said sums, together with the reasonable charges of taking and 
 keeping the distress, are not paid, then to sell the said goods and chattels so 
 by you distrained, and to pay the money arising from such sale unto me, the 
 convicting justice (or one of the convicting justices), that I may pay and 
 apply the same as by law directed, and may render the overplus, if any, on 
 demand, to the said A. B. ; and if no such distress is found, then to certify 
 the same unto me, that such further proceedings may be had thereon as to 
 law appertain. 
 
 Given under my hand and seal, this day of , in 
 
 the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county.) 
 C.C.P. 37
 
 578 WARRANT OF DISTRESS ON ORDER FOR PAYMENT. 
 
 FORM 40. 
 (Section 741.) 
 
 Warrant of Distress upon an Order for the Payment of Money. 
 
 Canada, ] 
 
 Province of , 
 
 County of . j 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas on , last past, a complaint was made before , 
 
 a justice of the peace in and for the said county, for that (etc., as in the 
 order), and afterwards, to wit, on , at , the said parties 
 
 appeared before (as in the order), and thereupon the matter of 
 
 the said complaint having been considered, the said A. B. was adjudged to 
 pay to the said C. D. the sum of , on or before then 
 
 next, and also to pay to the said C. D. the sum of , for his costs in 
 
 that behalf ; and it was ordered that if the said several sums were not paid 
 on or before the said then next, the same should be levied by 
 
 distress and sale of the goods and chattels of the said A. B. ; and it was 
 adjudged that in default of sufficient distress in that behalf, the said A. B. 
 should be imprisoned in the common gaol of the said county, at , 
 
 in the said county of (and there kept at hard labour if the 
 
 order so directs) for the term of , unless the said several sums and 
 
 all costs and charges of the distress (and of the commitment and convey- 
 ing of the said A. B. to the said common gaol) were sooner paid ; *And 
 Whereas the time in and by the said order appointed for the payment of 
 the said several sums of , and has elapsed, but the said 
 
 A. B. has not paid the same, or any part thereof, but therein has made 
 default : These are, therefore, to command you. in His Majesty's name, 
 forthwith to make distress of the goods and chattels of the said A. B. ; and 
 if within the space of days after the making of such distress, the 
 
 said last mentioned sums, together with the reasonable charges of takinsr 
 and keeping the said distress, are not paid, then to sell the said goods and 
 chattels so by you distrained, and to pay the money arising from such sale 
 unto me (or some other of the convicting justices, as the case may be), 
 that I (or he) may pay or apply the same as by law directed, and may 
 render the overplus, if any, on demand to the said A. B. ; and if no such 
 distress can be found, then to certify the same unto me, to the end that 
 such proceedings may be had therein, as to law appertain. 
 
 Given under my hand and seal, this day of , in the 
 
 year , at , in the county aforesaid. 
 
 J. S.. [SEAL.] 
 
 J. P., (name of county). 
 
 FORM 41. 
 (Section 741.) 
 
 Warrant of Commitment upon a Conviction for a Penalty in the first 
 
 instance. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 To all or any of the constables and other peace officers in the said county 
 of , and to the keeper of the common gaol of the said county 
 
 of , at , in the said county of
 
 WARRANTS OF COMMITMENT. 579 
 
 Whereas A. B., late of , (labourer), was on this day con- 
 
 victed before the undersigned, , a justice of the peace in and 
 
 for the said county, for that (stating the offence, as in the conviction), and 
 it was thereby adjudged that the said A. B., for his offence, should forfeit 
 and pay the sum of (etc., as in the conviction), and should pay 
 
 to the said O. D. the sum of , for his costs in that behalf ; and 
 
 it was thereby further adjudged that if the said several sums were not paid 
 (forthwith) the said A. B. should be imprisoned in the common gaol of 
 the county, at , in the said county of (and there 
 
 kept at hard labour if the conviction so adjudges) for the term of 
 unless the said several sums and the costs and charges of the commitment 
 and of the conveying of the said A. B. to the said common gaol were sooner 
 paid ; and whereas the time in and by the said conviction appointed for 
 the payment of the said several sums has elapsed, but the said A. B. has 
 not paid the same, or any part thereof, but therein has made default : 
 These are, therefore, to command you, the said peace officers, or any one of 
 you, to take the said A. B., and him safely to convey to the common gaol 
 at aforesaid, and there to deliver him to the said keeper thereof, 
 
 together with this precept : And I do hereby command you, the said keeper 
 of the said common gaol, to receive the said A. B. into your custody in the 
 said common gaol, there to imprison him (and keep him at hard labour 
 if the conviction so adjudges) for the term of , unless the said 
 
 several sums and the costs and charges of the commitment and of the con- 
 veying of the said A. B. to the said common gaol are sooner paid unto you, 
 the said keeper ; and for your so doing, this shall be your sufficient warrant. 
 
 Given under my hand and seal, this day of , in the 
 
 year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county.) 
 
 FORM 42. 
 (Section 741.) 
 
 Warrant of Commitment on an Order in the first Instance. 
 
 Canada, 
 
 Province of , 
 
 County of . 
 
 To all or any of the constables and other peace officers in the said county 
 of , and to the keeper of the common gaol of the said county 
 
 of , at , in the said county of , 
 
 Whereas, on last past, complaint was made before the 
 
 undersigned , a justice of the peace in and for the said county 
 
 of , for that (etc., as in the order), and afterwards, to wit, on 
 
 the day of , at A. B. and C. D. appeared 
 
 before me, the said justice (or as it is in the order), and thereupon having 
 considered the matter of the complaint, I adjudged the said A. B. to pay 
 the said C. D. the sum of , on or before the day 
 
 of then next, and also to pay to the said C. D. the sum of 
 
 for his costs in that behalf ; and I also thereby adjudged that if the said 
 several sums were not paid on or before the day of then 
 
 next, the said A. B. should be imprisoned in the common gaol of the county 
 of , at , in the said county of (and there be 
 
 kept at hard labour if the order so directs t for the term of , 
 
 unless the said several sums and the costs and charges of the commitment 
 and of the conveying of the said A. B. to the said common gaol, were sooner 
 paid : And whereas the time in and by the said order appointed for the 
 payment of the said several sums of money has elapsed, but the said A. B. 
 has not paid" the same, or any part thereof, but therein lias made default : 
 These are, therefore, to command you, the said peace officers, or any of you. 
 to take the said A. B. and him safely to convey to the said common gaol, 
 at aforesaid, and there to deliver him to the keeper thereof, 
 
 together with this precept : And I do hereby command you, the said 
 keeper of the said common gaol, to receive the said A. B. into your custody 
 in the said common gaol, there to imprison him (and keep him at hard
 
 580 COMMITMENT FOR WANT OF DISTRESS. 
 
 labour if 'the order so directs) for the term of unless the said 
 
 several sums and the costs and charges of the commitment and of convey- 
 ing him to the said common gaol are sooner paid unto you the said keeper ; 
 and for your so doing this shall be your sufficient warrant. 
 
 Given under my hand and seal, this day of , in the 
 
 year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P. (name of county). 
 
 FORM 43. 
 (Section 741.) 
 
 Constable's Return to a Warrant of Distress. 
 
 I, W. T., constable, of , in the county of , 
 
 hereby certify to J. S., Esquire, a justice of the peace in and for the 
 county of , that by virtue of this warrant I have made diligent 
 
 search for the goods and chattels of the within mentioned A. B., and that I 
 can find no sufficient goods or chattels of the said A. B. whereon to levy the 
 sums within mentioned. 
 
 Witness my hand, this day of , one thousand nine 
 
 hundred and 
 
 FORM 44. 
 (Section 741.) 
 
 Warrant for Commitment for Want of Distress. 
 
 Canada. 
 
 Province of , 
 
 County of 
 
 To all or any of the constables and other peace officers in the county 
 of , and to the keeper of the common gaol of the said county 
 
 of , at , in the said county. 
 
 Whereas (etc., as in either of the foregoing distress warrants 39 or 40, 
 to the asterisk,* and then thus) : And whereas, afterwards on the 
 day of , in the year aforesaid, I, the said justice, issued a warrant 
 
 to all or any of the peace officers of the county of , commanding 
 
 them, or any of them, to levy the said sums of and by 
 
 distress and sale of the goods and chattels of the said A. B. : And whereas 
 it appears to me, as well by the return of the said warrant of distress by 
 the peace officer who had the execution of the same, as otherwise, that the 
 said peace officer has made diligent search for the goods and chattels of the 
 said A. B., but that no sufficient distress whereon to levy the sums above 
 mentioned could be found : These are, therefore, to command you, the 
 said peace officers, or any one of you, to take the said A. B., and him safely 
 to convey to the common gaol at aforesaid, and there deliver 
 
 him to the said keeper, together with this precept : And I do hereby com- 
 mand you, the said keeper of the said common gaol, to receive the said 
 A. B. into your custody, in the said common gaol, there to imprison him 
 (and keep him at hard labour if the order so directs) for the term of 
 , unless the said several sums, and all the costs and charges 
 of the said distress and of the commitment and of the conveying of the 
 said A. B. to the said common gaol are sooner paid unto you, the said 
 keeper ; and for so doing this shall be your sufficient warrant. 
 
 Given under my hand and seal, this day of , in the 
 
 year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P. (name of county).
 
 DISTRESS FOR COSTS ON ORDER OF DISMISSAL. 5.81 
 
 FORM 45. 
 (Section 742.) 
 
 Warrant of Distress for Costs upon an Order for Dismissal of an Informa- 
 tion or Complaint. 
 
 To all or any ofl the constables and other peace officers in the said county 
 of 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 Whereas on last past, information was laid (or complaint 
 
 was made) before , a justice of the peace in and for the said 
 
 county of , for that (etc., as in the order of dismissal) and after- 
 
 wards, to wit, on , at , both parties appearing before 
 
 (me) , in order that (/) should hear and determine the same, and 
 
 the several proofs adduced to (me) in that behalf, being by (me) duly heard 
 and considered, and it manifestly appearing to (me) that the said informa- 
 tion (or complaint) was not proved, (7) therefore dismissed the same and 
 adjudged that the said C. D. should pay to the said A. B. the sum of 
 , for his costs incurred by him in his defence in that behalf; 
 and (/) ordered that if the said sum for costs was not paid (forthwith), 
 the same should be levied on the goods and chattels of the said C. D., and 
 (/) adjudged that in default of sufficient distress in that behalf the said 
 C. D. should be imprisoned in the common gaol of the said county of , 
 
 at , in the said county of 
 
 (and there kept at hard labour, if the order so directed) for the space of 
 unless the said sum for costs, and all costs and charges of the 
 said distress and of the commitment and of the conveying of the said A. B. 
 to the said common gaol, were sooner paid ; * And whereas the said C. D, 
 being now required to pay to the said A. B. the said sum for costs, has 
 not paid the same, or any part thereof, but therein has made default : 
 These are, therefore, to command you, in His Majesty's name, forthwith to 
 make distress of the goods and chattels of the said C. D. and if within the 
 term of days next after the making of such distress, the said 
 
 last mentioned sum, together with the reasonable charges of taking and 
 keeping the said distress, shall not be paid, then to sell the said goods and 
 chattels so by you distrained, and to pay the money arising from such sale 
 to (me) that (/) may pay and apply the same as by law directed, and may 
 render the overplus (if any) on demand to the said C. D., and if no dis- 
 tress can be 'found, then to certify the same unto (me) (or to any other 
 justice of the peace for the said county), that such proceedings may be had 
 therein as to law appertain. 
 
 Given under my hand and seal, this day of , in the 
 
 year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P. (name of county). 
 
 FOBM 46. 
 (Section 742.) 
 
 Warrant of Commitment for Want of Distress. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 To all or any of the constables and other peace officers in the said county 
 of , and to the keeper of the common gaol of the said county 
 
 of , at , in the said county of 1 
 
 Whereas (etc., as in form J/5 to the asterisk, * and then thus) : And 
 whereas afterwards, on the day of , and in, the year afore- 
 
 said, I, the said justice, issued a warrant to all or any of the peace officers 
 of the said county, commanding them, or any of them, to levy the said sum
 
 582 COMPLAINT BY PARTY THREATENED. 
 
 of , for costs, by distress and sale of the goods and chattels of 
 
 the said C. I). ; And whereas it appears to me, as well by the return to the 
 said warrant of distress of the peace officer charged with the execution of 
 the same, as otherwise, that the said peace officer has made diligent search 
 for the goods and chattels of the said G. D., but that no sufficient distress 
 whereon to levy the sum above mentioned could be found : These are, there- 
 fore, to command you, the said peace officers, or any one of you, to take the 
 said C. D., and him safely convey to the common gaol of the said county, at 
 aforesaid and there deliver him to the keeper thereof, together 
 with this precept : And I hereby command you, the said keeper of the said 
 common gaol, to receive the said C. D. into your custody in the said common 
 gaol, there to imprison him and keep him at hard labour (if the order so 
 directed): 'for the term of , unless the said sum. and all the costs 
 
 and charges of the said distress and of the commitment and of the convey- 
 ing of the said C. D. to the said common gaol are sooner paid unto you the 
 said keeper ; and for your so doing, this shall be your sufficient warrant. 
 
 Given under my hand and seal, this day of , in the 
 
 year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P. (name of county). 
 
 FORM 47. 
 (Section 743.) 
 
 Endorsement in Backing a Warrant of Distress. 
 Canada, \ 
 
 Province of , 
 
 County of . ) 
 
 Whereas proof upon oath has this day been made before me , 
 
 a justice of the peace in and for the said county,' that the name of J. S. to 
 the within warrant subscribed is of the handwriting of the justice of the 
 peace within mentioned. I do therefore authorize W. T., who brings me 
 this warrant, and all other persons to whom this warrant was originally 
 directed, or by whom the same may be lawfully executed, and also all peace 
 officers in the said county of , to execute the same within the said 
 
 county. 
 
 Given under my hand, this day of , one thousand 
 
 nine hundred and 
 
 O. K., 
 
 J. P. (name of county). 
 
 FOBM 48. 
 (Section 748.) 
 
 Complaint by the Party Threatened, for Sureties for the Peace. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 The information (or complaint of C. D.. of , in the 
 
 said county of , (labourer), (if preferred by an attorney or agent, 
 
 say by D. E.. his duly authorized agent (or attorney), in this behalf), 
 taken upon oath, before me, the undersigned, a justice of the peace, in and 
 for the said county of , at , in the said county of , 
 
 this day of , in the year , who says that A. B., 
 
 of , in the said county did. on the day of (instant 
 
 or last past), threaten the said C. D. in the words or to the effect follow- 
 ing, that is to say: (set them out, with the circumstances under which they 
 tcere used) ; and that from the above and other threats used by the said 
 A. B. towards the said C. !>., he, the said C. D., is afraid that the said A. B. 
 will do him some bodily injury, and therefore prays that the said A. B. may 
 be required to find sufficient sureties to keep the peace and be of good 
 behaviour towards him, the said C. D. ; and the said C. D. also says that 
 he does not make this complaint against nor require such sureties from the 
 said A. B. from any malice or ill-will, but merely for the preservation of 
 his person from injury.
 
 RECOGNIZANCE TO KEEP THE PEACE. 583 
 
 FOEM 49. 
 (Sections 748 and 1058.) 
 
 Form of Recognisance to Keep the Peace. 
 
 Canada, \ 
 
 Province of , 
 
 County of 
 
 Be it remembered that on the day of , in tin- 
 
 year , A. B. of , (labourer), L. M. of , (grocer), 
 
 and N. O. of , (butcher), personally came before (MS) the under- 
 
 signed, (two) justices of the peace for the county of . and 
 
 severally acknowledged themselves to owe to our Lord the King the several 
 sums following, that is to say : the said A. B. the sum ofi , and 
 
 the said L. M. and N. O. the sum of , each, of good and lawful 
 
 money of Canada, to be made and levied of their goods and chattels, lands 
 and tenements respectively, to the use of our said Lord the King, his heirs 
 and successors, if he, the said A. B., fail in the condition endorsed (or here- 
 under written). 
 
 Taken and acknowledged the day and year first above mentioned 
 at before us. 
 
 J. S., 
 J. T., 
 
 J. P. (name of county). 
 
 The condition of the within (or above) written recognizance is such 
 that if the within bound A. B. (of, etc.), keeps the peace and is of good 
 behaviour towards his Majesty and his liege people, and specially towards 
 C. D. (of, etc.) for the term of now next ensuing, then the said 
 
 recognizance to be void, otherwise to stand in full force and virtue 
 
 FOKM 50. 
 (Section 748.) 
 
 Form of Commitment in Default of Sureties. 
 
 Canada, "I 
 
 Province of , 
 
 County of 
 
 To all or anjt of the constables and other peace officers in the said county 
 of , and to the keeper of the common gaol of the said county 
 
 of , at , in the said county. 
 
 Whereas on the day of (instant) complaint on oath 
 
 was made before the undersigned (or J. L.. Esquire), a justice of the peace 
 in and for the said county of , by C. D., of . in the 
 
 said county, (labourer), that A. B., of (etc.), on the day of , 
 
 at aforesaid, did threaten (etc., follow to the end of the complaint, 
 
 ns in form above, in the past tense, then) : And whereas the said A. B. was 
 this day brought and appeared before me, the said justice (or J. L., Esquire, 
 a justice of the peace in and for the said county of ) to answer 
 
 unto the said complaint ; and having been required by me to enter into his 
 own recognizance in the sum of , with two sufficient sureties in the 
 
 sum of each, to keep the peace and be of good behaviour towards 
 
 His Majesty and his liege people, and especially towards the said C. D., has 
 refused and neglected, and still refuses and neglects, to find such sureties : 
 These are. therefore, to command you, and each of you, to take the said 
 A. B., and him safely to convey to the common gaol at aforesaid, and 
 
 there to deliver him to the keeper thereof, together with this precept : And I 
 do hereby command you. the said keeper of the said common gaol, to receive 
 the said A. B. into your custody in the said common gaol, there to imprison
 
 584 RECOGNIZANCE TO TRY AN APPEAL. 
 
 him for the space of , or until he shall otherwise be discharged in 
 
 doe course of law, unless he, in the meantime, finds sufficient sureties to 
 keep the peace as aforesaid. 
 
 Given under my hand and seal, this day of , in the 
 
 year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P. (name of county'). 
 
 FORM 51. 
 (Section 750.) 
 
 Form of Recognizance to try the Appeal. 
 
 Canada, | 
 
 Province of , > 
 
 County of . ) 
 
 Be it remembered that on , A. B., of (labourer), 
 
 and L. M., of , (grocer), and N. O., of , (yeoman), 
 
 personally came before the undersigned , a justice of the peace in 
 
 and for the said county of , and severally acknowledged themselves 
 
 to owe to our Sovereign Lord the King, the several sums following, that is 
 to say, the said A. B. the sum of , and the said L. M. and N. O. the 
 
 sum of , each, of good and lawful money of Canada, to be made 
 
 and levied of their several goods and chattels, lands and tenements respec- 
 tively, to the use of our said Lord the King, his heirs and successors, if he 
 the said A. B. fails in the condition endorsed (or hereunder written). 
 
 Taken and acknowledged the day and the year first above mentioned 
 at , before me. 
 
 J. S., 
 
 J. P. (name of county). 
 
 The condition of the within (or the above) written recognizance is such 
 that if the said A. B. personally appears at the (next) General Sessions of 
 the Peace (or other Court discharging the functions of the Court of General 
 Sessions, as the case may be), to be holden at . on the 
 
 day of , next, in and for the said county of , and tries 
 
 an appeal against a certain conviction, bearing date the day 
 
 of , (instant), and made by (me) the said justice, whereby he, 
 
 the said A. B., was convicted, for tnat he, the said A. B., did on the 
 day of , at , in the said county of , 
 
 (here set out the offence as stated in the conviction) ; and also abides 
 by the judgment of the court upon such appeal and pays such costs as are 
 by the court awarded, then the said recognizance to be void, otherwise to 
 remain in full force and virture. 
 
 Form of Notice of such Recognizance to "be given to the Appellant and his 
 
 Sureties. 
 
 Take notice, that you, A. B., are bound in the sum of , and 
 
 you. L. M. and N. O., in the sum of , each, that you the said 
 
 A. B. will personally appear at the next General Sessions of the Peace to 
 be holden at , in and for the said county of , and try 
 
 an appeal against a conviction (or order) dated the day 
 
 of , (instant), whereby you A. B. were convicted of (or ordered, 
 
 etc.), (stating offence or the subject of the order shortly), and abide 
 by the judgment of the court upon such appeal and pay such costs as are 
 by the court awarded, and unless you the said A. B. personally appear 
 and try such appeal and abide by such judgment and pay such costs accord- 
 ingly, the recognizance entered into by you will forthwith be levied on you, 
 and each of you. 
 
 Dated at , this day of , one thousand 
 
 nine hundred and
 
 CERTIFICATE AND WARRANT FOR COSTS ON APPEAL. 585. 
 
 FORM 52. 
 (Section 759.) 
 
 Certificate of Clerk of the Peace that the Costs of an Appeal are not paid. 
 Office of the clerk of the peace for the county of 
 
 Title of the Appeal. 
 
 I hereby certify that at a Court of General Sessions of the Peace, (or 
 other court discharging the function of the Court of General Sessions, as 
 the case may be), holden at , in and for the said county, on 
 
 last past, an appeal by A. B. against a conviction (or order) 
 of J. S., Esquire, a justice of the peace in and for the said county, came 
 on to be tried, and was there heard and determined, and the said Court of 
 General Sessions (or other court, as the case may be) thereupon ordered 
 that the said conviction (or order) should be confirmed (or quashed), and 
 that the said (appellant) should pay> to the said (respondent) the sum 
 of , for his costs incurred by him in the said appeal, and which 
 
 sum was thereby ordered to be paid to the clerk of the peace for the said 
 county, on or before the day of (instant), to be by 
 
 him handed over to the said (respondent), and I further certify that the 
 said sum for costs has not, nor has any part thereof, been paid in obedience 
 to the said order. 
 
 Dated at , this day of , one thousand 
 
 nine hundred and 
 
 G. H., 
 
 Clerk of the Peace. 
 
 FOBM 53. 
 (Section 759.) 
 
 Warrant of Distress for Costs of an Appeal against a Conviction or Order. 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 Whereas (etc., as in the warrants of distress, forms 39 or 40, and to 
 the end of the statement of the conviction or order, and then thus) And 
 whereas the said A. B. appealed to the Court of General Sessions of the 
 Peace (of other Court discharging the functions of the Court of General 
 Sessions, as the case may be), for the said county, against the said convic- 
 tion or order, in which appeal the said A. B. was the appellant, and the 
 said C. D. (or J. S. Esquire, the justice of the peace who made the said 
 conviction (or order) was the respondent, and which said appeal came on 
 to be tried and was heard and determined at the last General Sessions of 
 the Peace (or other court, as the case may be) for the said county, holden 
 at , on ; and the said court thereupon ordered that 
 
 the said conviction (or order) should be confirmed (or quashed) and that 
 the said (appellant) should pay to the said (respondent) the sum of 
 for his costs incurred by him in the said appeal, which said sum was to be 
 paid to the clerk for the said county, on or before the day 
 
 of , one thousand nine hundred and , to be by him 
 
 handed over to the said C. D. ; and whereas the clerk of the peace of the 
 said county has, on the day of (instant), duly 
 
 certified that the said sum for costs had not been paid : * These are, there- 
 fore, to command you, in His Majesty's name, forthwith to make distress 
 of the goods and chattels of the said A. B., and if, within the term of 
 days next after the making of such distress, the said last 
 mentioned sum, together with the reasonable charges of taking and keeping 
 the said distress, are not paid, then to sell the said goods and chattels so 
 by you distrained, and to pay the money arising from such sale to the clerk
 
 586 COMMITMENT FOE WANT OP DISTRESS. 
 
 of the peace for the said county of , that he may pay and 
 
 apply the same as by law directed ; and if no such distress can be found, 
 then to certify the same unto me or any other justice of the peace for the 
 8aid county, that such proceedings may be had therein as to law appertain. 
 
 Given under my hand and seal, this day of , in the 
 
 year , at , in the county aforesaid. 
 
 O. K., [SEAL.] 
 
 J. P. (name of county). 
 
 FORM 54. 
 (Section 759.) 
 
 Warrant of Commitment for Want of Distress in the last Case. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 To all or any of the constables and other peace officers in the said county 
 of , and to the keeper of the common gaol of the said county 
 
 of , at , in the said county of 
 
 Whereas (etc., as in form 53, to the asterisk * and then thus) : An.d 
 whereas, afterwards, on the day of . in the year 
 
 aforesaid, I, the undersigned, issued a warrant to all or any of the peace 
 officers in the said county of . commanding them, or any of them, 
 
 to levy the said sum' of , for costs, by distress and sale of the 
 
 goods and chattels of the said A. B. : And whereas* it appears to me, as well 
 by the return to the said warrant of distress of the peace officer who was 
 charged with the execution of the same, as otherwise, that the said peace 
 officer has made diligent search for the goods and chattels of the said lA. B.. 
 but that no sufficient distress whereon to levy the said sum above mentioned 
 could be found : These are, therefore, to command you, the said peace officers, 
 or any of you. to take the said A. B., and him safely to convey to the 
 common gaol of the said county of , at aforesaid 
 
 and there deliver him to the said keeper thereof, together with this precept : 
 And I do hereby command you, the said keeper of the said common gaol, to 
 receive the said A. B. into custody in the said common gaol, there to 
 imprison him for the term of , unless the said sum and all costs 
 
 and charges of the said distress and of the commitment and of the conveying 
 of the said A. B. to the said common gaol, are sooner paid unto you, the 
 said keeper : and for so doing this shall be your sufficient warrant. 
 
 Given tinder my hand and seal, this day of , , in the 
 
 year , at , in the county aforesaid. 
 
 O. K.. [SEAL.] 
 
 J. P. (name of county). 
 
 FORM 55. 
 (Section 799.) 
 
 Conviction. 
 
 :1 
 
 Canada, 
 Province of 
 County of 
 
 Be it remembered that on the day of , in the 
 
 year . at , A. B.. being charged before me, the 
 
 undersigned . of the said (city) (and consenting to my trying 
 
 the charge summarily), is convicted before me, for that he. the said A. B.,
 
 SUMMAEY CONVICTION CERTIFICATE OF DISMISSAL. 587 
 
 (etc., stating the offence, and the time and place when and where com- 
 mitted), and I adjudge the said A. B., for his said offence, to be imprisoned 
 in the (and there kept at hard labour, if it is so adjudged) for 
 
 the term of 
 
 Given under my hand and seal, the day and year first above mentioned, 
 at aforesaid. 
 
 G. F., [SEAL.] 
 
 Police Magistrate 
 
 for 
 (or as the case may be). 
 
 FORM 56. 
 (Section 799.) 
 
 Conviction upon a Plea of Guilty. 
 
 Canada, "j 
 
 Province of , 
 
 County of , J 
 
 Be it remembered that on the day of , in the 
 
 year , at , A. B., being charged before me, the 
 
 undersigned, ,. of the said (city) (and consenting to my trying 
 
 the charge summarily), for that he, the said A. B., (etc., stating the offence, 
 and the time and place when and where committed), and pleading guilty to 
 such charge, he is thereupon convicted before me of the said offence ; and I 
 adjudge him, the said A. B. for his said offence, to be imprisoned in the 
 (and there kept at hard labour, if it is so adjudged) for the 
 term of 
 
 Given under my hand and seal, the day and year first above mentioned, 
 at aforesaid. 
 
 G. F., [SEAL.] 
 
 Police Magistrate 
 
 for 
 (or as the case may be) 
 
 FORM 57. 
 (Section 799.) 
 
 Certificate of Dismissal. 
 
 Canada, 
 
 Province of , 
 
 County of . J 
 
 I, the undersigned, , of the city (or as the case may be) of 
 
 , certify that on the day of in 
 
 the year , at aforesaid, A. B., being charged before 
 
 me (and consenting to my trying the charge summarily), for that he, the 
 said A. B., (etc., stating the offence charged, and the time and place when 
 and where alleged to have been committed), I did, after having summarily 
 tried the said charge, dismiss the same. 
 
 Given under my hand and seal, this day of , in the 
 
 year , at aforesaid. 
 
 G. F., [SEAL.] 
 Police magistrate 
 
 for 
 (or as the case may be).
 
 588 CERTIFICATE OF DISMISSAL CONVICTION. 
 
 FORM 58. 
 (Section 813.) 
 
 Certificate of Dismissal. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 , justices of the peace for the 
 of , (or if a recorder, etc., I a. 
 
 of the of , as the case may be), do hereby 
 
 certify that on the day of , in the year 
 
 at , in the said of , A. B. was brought 
 
 before us, the said justices (or me, the said ), charged with the 
 
 following offence, that is to say (here state briefly the particulars of the 
 charge)^, and that we the said justices, (or I, the said ) there- 
 
 upon dismissed the said charge. 
 
 Given under pur hands and seals (or my hand and seal), this 
 day of , in the year , at , aforesaid. 
 
 J. P. [SEAL.] 
 
 J. R. [SEAL.] 
 
 or S. J. [SEAL.] 
 
 FOBM 59. 
 (Section 814.) 
 
 Conviction. 
 
 Canada, ] 
 
 Province of , \ 
 
 County of . J 
 
 Be it remembered that on the day of , in the 
 
 year^ , at , in the county of , A. B. is 
 
 convicted before us, J. P. and J. R., justices of the peace for the said county 
 (or me, S. J., recorder, of the , of , or as the case 
 
 may be) for that he, the said A. B., did (specify the offence and the time and 
 place when and where the same was committed, as the case may be. hut 
 without setting forth the evidence), and we the said J. P. and J. R. (or I, 
 the said S. J.), adjudge the said A. B., for his said offence, to be imprisoned 
 in the with (or without) hard labour (in the discretion of the 
 
 justice) for the space of , (or wej (or 1) adjudge the saic 1 , 
 
 A. B., for his said offence, to forfeit and pay (here state the penalty actually 
 imposed), and in default of immediate payment of the said sum, to be im- 
 prisoned in the with (or without) hard labour (in the discre- 
 tion of the justice) for the term of , unless the said sum is sooner 
 paid. 
 
 Given under our hands and seals (or my hand and seal), the day and 
 year first above mentioned. 
 
 J. P. [SEAL.] 
 
 J. R. [SEAL.] 
 
 or S. J. [SEAL.] 
 
 FORM 60. 
 (Section 827.) 
 
 Form of Record when the Prisoner Pleads Guilty. 
 
 Canada, "I 
 
 Province of , 
 
 County of . J 
 
 Be it remembered that A. B. being a prisoner in the gaol of the said 
 county, on a charge of having on the , day of , in the
 
 RECORD AT SPEEDY TRIAL, CONVICTION AND SENTENCE. 589 
 
 year , stolen, etc., (one cow the property of C. D., or as the 
 
 case may be, stating briefly the offence), and being brought before me 
 (describe the judge) on the day of in the 
 
 year , and asked by me if he consented to be tried before me 
 
 without the intervention of a jury, consented to be so tried ; and that the 
 said A. B. being then arraigned upon the said charge, he pleaded guilty 
 thereof, whereupon I sentenced the said A. B. to (here insert such sentence 
 as the law allows and the judge thinks right). 
 
 Witness my hand this day of , in the year 
 
 O. K., 
 
 Judge. 
 
 FORM 61. 
 (Section 833.) 
 
 Form of Record when the Prisoner Pleads Not Guilty. 
 
 Canada, ") 
 
 Province of , [ 
 
 County of . J 
 
 Be it remembered that A. B. being a prisoner in the gaol of the said 
 county, committed for trial on a charge of having on the day 
 
 of , in the year , stolen, etc., (one cow, the property 
 
 of C. D., or as the case may be, stating briefly the offence) and having been 
 brought before me (describe the judge) on the day of , 
 
 in the year , and asked by me if he consented to be tried before 
 
 me without the intervention of a jury, consented to be so tried ; and 
 that upon the day of , in the year , the 
 
 said A. B., being again brought before me for trial, and declaring himself 
 ready, was arraigned upon the said charge and pleaded not guilty ; and after 
 hearing the evidence adduced, as well in support of the said charge as for 
 the prisoner's defence (or as the case may be), I find him to be guilty of 
 the offence with which he is charged as aforesaid, and I accordingly sentence 
 him to (here insert such sentence as the law allows and the judge thinks 
 right), (or I find him not guilty of the offence with which he is charged, 
 and discharge him accordingly). 
 
 Witness my hand at in the County of' this 
 
 day of , in the year 
 
 O. K., 
 
 Judge. 
 
 FORM 62. 
 (Section 842.) 
 
 Warrant to Apprehend Witness. 
 
 Canada, 
 
 Province of , 
 
 County of . 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas it having been made to appear before me, that E. F., 
 of , in the said county of , is likely to give material 
 
 evidence on behalf of the prosecution (or defence, as the case may be) on 
 the trial of a certain charge of (as theft, or as the case may be), against 
 A. B., and that the said E. F. was duly subprenaed (or bound under recog- 
 nizance) to appear on the day of , in the 
 year , at , in the said county at o'clock 
 (forenoon or afternoon, as the case may be), before me, to testify what he 
 knows concerning the said charge against the said A. B.
 
 590 FORMS FOR INDICTMENTS AND HEADINGS. 
 
 And whereas proof has this day been made before me upon oath of 
 such subpoena having been duly served upon the said E. F., (or of the said 
 E. F. having been duly bound under recognizance to appear before me, at 
 the case may lie) ; and whereas the said E. F. has neglected to appear at the 
 time and place appointed, and no just excuse has been offered for such 
 neglect : These are, therefore, to command you to take the said E. F., and to 
 bring him and have him forthwith before me, to testify what he knows 
 concerning the said charge against the said A. B., and also to answer his 
 contempt for such neglect. 
 
 Given under my hand this day of , in the 
 
 year 
 
 O. K-., 
 
 Judge. 
 
 FORM 63. 
 (Sections 845 and 856.) 
 
 Headings of Indictment. 
 
 In the (name of the court in which the indictment is found). 
 The jurors for our Lord the King present that 
 
 (Where there are more counts than one, add at the beginning of each 
 count) : 
 
 The said jurors further present that 
 
 FORM 64. 
 (Section 852.) 
 
 Examples of the manner of stating offences. 
 
 (a) A. murdered B. at , on 
 
 (6) A. stole a sack of flour from a ship called the , 
 
 at , on 
 
 (c) A. obtained by false pretences from B., a horse, a cart and the 
 harness of a horse at , on 
 
 (d) A. committed perjury with intent to procure the conviction of B. 
 for an offence punishable with penal servitude, namely, robbery, by swearing 
 on the trial of B. for the robbery of C. at the Court of Quarter Sessions for 
 the county of Carleton, held at Ottawa, on the day of , 
 19 ; first, that he, A., saw B. at Ottawa, on the day 
 of ; secondly, that B. asked A. to lend B. money on a watch 
 belonging to C. ; thirdly, etc. 
 
 or 
 
 (e) The said A. committed perjury on the trial of B. at a Court of 
 Quarter Sessions held at Ottawa, on for an assault alleged 
 to have been committed by the said B. on C. at Ottawa, on the 
 
 day of by swearing to the effect that the said B. could not 
 
 have been at Ottawa, at the time of the alleged assault, inasmuch as the 
 said A. had seen him at that time in Kingston. 
 
 (/) A., with intent to maim, disfigure, disable or do grievous bodily 
 harm to B. or with intent to resist the lawful apprehension or detainer of 
 A. (or C.), did actual bodily harm to B. (or D.). 
 
 (g) A., with intent to injure or endanger the safety of persons on the 
 Canadian Pacific Railway, did an act calculated to interfere with an engine. 
 a tender, and certain carriages on the said railway on 
 
 at by (describe with so much detail as is sufficient to gii'e 
 
 the accused reasonable information as to the acts or omissions relied on 
 against him, and to identify the transactions). 
 
 (h) A. published a defamatory libel on B. in a certain newspaper. 
 called the , on the day of 19 , which libel 
 
 was contained in an article headed or commencing (describe with so much 
 detail as is sufficient to (lire the accused reasonable information as to the 
 part of the publication to be relied on against him), and which libel was 
 written in the sense of imputing that the said B. was (as the case may be).
 
 INDICTMENT AGAINST PERSON NOT IN CUSTODY. 591 
 
 FOBM 65. 
 (Section 879.) 
 
 Certificate of Indictment "being Found. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 I hereby certify that at a Court of (Oyer and Terminer, or General 
 Gaol Delivery, or General Sessions of the Peace) holden in and for the 
 county of , at , in the said (county), on , 
 
 a bill of indictment was found by the grand jury against A. B., therein 
 described as A. B., late of , (labourer), for that he (etc., stating 
 
 shortly the offence), and that the said A. B. has not appeared or pleaded 
 to the said indictment. 
 
 Dated this day of , in the year 
 
 Z. X. 
 
 (Title of officer.) 
 
 FORM 66. 
 (Section 880.) 
 
 Warrant to Apprehend a Person Indicted. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas it has been duly certified by J. D., clerk of the (name the 
 court) (or E. G., deputy clerk of the Crown or clerk of the peace, or as the 
 case may be), in and for the county of , that (etc., stating the 
 
 certificate) : These are, therefore, to command you in His Majesty's name 
 forthwith to apprehend the said A. B., and to bring him before (me) or 
 some other justice or justices of the peace in and for the said county, to be 
 dealt with according to law. 
 
 Given under my hand and seal, this day of , in 
 
 the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P. (name of county). 
 
 FORM 67. 
 (Section 881.) 
 
 Warrant of Commitment of a Person Indicted. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 To all or any of the constables and other peace officers in the said county 
 of , and the keeper of the common gaol at , 
 
 in the said county of 
 
 Whereas by a warrant under the hand and seal of , (a) 
 
 justice of the peace in and for the said county of dated , 
 
 after reciting that it had been certified by J. D. (etc., as in the certificate). 
 the said justice of the peace commanded all or any of the constables or peace 
 officers o'f the said county, in His 'Majesty's name, forthwith to apprehend 
 the said A. B., and to bring him before (him) the said justice of the peace
 
 592 WARRANT TO DETAIN PRISONER ON FRESH INDICTMENT. 
 
 or before some other justice or justices in and for the said county, to be 
 dealt with according to law ; and whereas the said A. B. has been appre- 
 hended under and by virtue of the said warrant, and being now brought 
 before (me) it is hereupon duly proved to (me) upon oath that the said 
 A. B. is the same person who is named and charged as aforesaid in the said 
 indictment: These are therefore to command you, the said constables and 
 peace officers, or any of you, in His Majesty's name, forthwith to take and 
 convey the said A. B. to the said common gaol at , in the said 
 
 county of , and there to deliver him to the keeper thereof, to- 
 
 gether with this precept : And (/) hereby command you the said keeper 
 to receive the said A. B. into your custody in the said gaol, and him there 
 safely to keep until he shall thence be delivered by due course of law. 
 
 Given under (my) hand and seal, this day of 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P.,. (name of county.) 
 
 FORM 68. 
 (Section 882.) 
 
 Warrant to detain a Person indicted who is already in Custody for another 
 
 Offence. 
 Canada, 
 Province of 
 County of 
 
 To the keeper of the common gaol at , in the said county 
 
 of 
 
 Whereas it has been duly certified by J. D., clerk of the (name the 
 court) (or deputy clerk of the Crown or clerk of the peace of and for the 
 county of , (or as the case may be), that (etc., stating the 
 
 certificate) ; And whereas (/ am) informed that the said A. B. is in your 
 custody in the said common gaol at aforesaid, charged with some 
 
 offence, or other matter; and it being now duly proved upon oath before 
 (me) that the said A. B., so indicted as aforesaid, and the said A. B., in 
 your custody, as aforesaid, are one and the same person : These are there- 
 fore to command you, in His Majesty's name, to detain the said A. B. 
 in your custody, in the common gaol aforesaid, until by a writ of habeas cor- 
 pus he shall be removed therefrom, for the purpose of being tried upon the 
 said indictment, or until he shall otherwise be removed or discharged out 
 of your custody by due course o'f law. 
 
 Given under (my) hand and seal, this day of 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (name of county.) 
 
 FORM 69. 
 (Section 925.) 
 
 Challenge to Array. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 The King ] The said A. B.. who prosecutes for our Lord the King (or 
 
 v. \ the said C. D., as the case may be) challenges the array of 
 C. D, J the panel on the ground that it was returned by X. Y., sheriff 
 of the county of (or E. F., deputy of X. Y., sheriff of the 
 
 county of (as the case may be), and that the said X. Y. (or 
 
 E. F., as the case may be), was guilty of partiality (or fraud, or wilful mis- 
 conduct) on returning said panel.
 
 CHALLENGE TO POLL CERTIFYING OF DEATH SENTENCE. 593 
 
 FORM 70. 
 
 Challenge to Pott. 
 (Section 936.) 
 
 Canada, 
 Province of 
 County of 
 
 The King The said A. B. who prosecutes, etc. (or the said C. D., as 
 
 v. the case may be) challenges G. H., on the ground that his 
 
 C. D. name does not appear in the panel, [or that he is not indif- 
 ferent between the King and the said C. D., or that he was convicted and 
 sentenced to death, or penal servitude, or imprisonment with hard labour, 
 or exceeding twelve months, or that he is disqualified as an alien.] 
 
 FORM 71. 
 (Section 1068.) 
 
 Certificate of Execution of Judgment of Death. 
 
 I. A. B., surgeon (or as the case may be) of the (describe the prison), 
 hereby certify that I, this day, examined the body of C. D. on whom judg- 
 ment of death was this day executed in the said prison and that on such 
 examination I found that the said C. D. was dead. 
 
 Dated this day of , in the year 
 
 (Signed), A.B. 
 
 FOEM 72. 
 (Section 1068.) 
 
 Declaration of Sheriff and Others. 
 
 We, the undersigned, hereby declare that judgment of death was this 
 day executed on C. D., in the (describe the prison) in our presence. 
 
 Dated this day of , in the year 
 
 E. F., Sheriff of 
 L. M., Justice of the Peace for 
 G. H., Gaoler of, 
 etc., etc. 
 
 FORM 73. 
 (Section 1097.) 
 
 Certificate of Non-appearance to be endorsed on the Defendant's 
 Recognizance. 
 
 I hereby certify that the said A. B. has not appeared at the time and 
 place in the said condition mentioned, but therein has made default, by 
 reason whereof the within written recognizance is forfeited. 
 
 Dated at this day of , A.D. 19 
 
 J. S., [SEAL.] 
 
 J. P., (name of county.) 
 C.C.P. 38
 
 594 
 
 WRIT OF FIERI FACIAS JUSTICES' RETURN. 
 
 (Section 1105.) 
 
 FORM 74. 
 Writ of Fieri Facias. 
 
 George V., by the Grace of God, etc. 
 
 To the sheriff of , greeting: 
 
 You are hereby commanded to levy of the goods and chattels, lands and 
 tenements, of each of the persons mentioned in the roll or extract to this 
 writ annexed, all and singular the debts and sums of money upon them 
 severally imposed and charged, as therein is specified ; and if any of the 
 said several debts cannot be levied, by reason that no goods or chattels, 
 lands or tenements can be found belonging to the said persons, respectively, 
 then, and in all such cases, that you take ihe "bodies of such persons, and 
 keep them safely in the gaol of your county, there to abide the judgment of 
 our court (as the case may be) upon any matter to be shown by them, 
 respectively, or otherwise to remain in your custody as aforesaid, until such 
 debt is satisfied unless any of such persons respectively gives sufficient 
 security for his appearance at the said Court, on the return day hereof, 
 for which you will be held answerable ; and what you do in the premises 
 make appear before us in our court (as the case may be), on the 
 day of term next, and have then and there this writ. Witness, 
 
 etc., G. H., clerk (as the case may be). 
 
 (Section 1133.) 
 
 FORM 75. 
 
 Justices' Return. 
 
 RETURN of convictions made by me (or us, as the case may be), during the 
 quarter ending , 19 . 
 
 1 
 
 S 
 
 
 
 
 
 be 
 
 c 
 E 
 
 o 
 
 20 
 *r^ 
 
 fci 00 
 
 > 
 
 
 3 
 
 
 fcc 
 
 
 
 & 
 
 
 If 
 
 
 
 
 c 
 
 t 
 
 S3 
 
 S 
 
 
 *~5 
 
 V 
 
 
 1 
 
 2 
 
 
 O 
 
 B 
 
 e8 
 
 T3T3 
 
 o 
 
 
 ame of the Pn 
 
 ame of the De 
 
 ature of the U 
 
 ate of Convict 
 
 o 
 O 
 
 O 
 
 II 
 
 mount of Per 
 or Damage. 
 
 Line when pai 
 paid to the sa: 
 
 o whom paid 
 said Justice. 
 
 If not paid, why not, and general observa- 
 tions, if any. 
 
 S5 
 
 35 
 
 Z 
 
 Q 
 
 
 *^ 
 
 H 
 
 H 
 
 
 
 
 
 
 
 
 
 
 J. S., Convicting Justice. 
 
 or 
 J. S. and O. K., Convicting Justices (as the case may be).
 
 FORM OF WEAPON PERMIT. 595 
 
 "FOEM 76. 
 (Added by 3-4 Geo. V, Chap. 13.) 
 
 " Weapon Permit. 
 " (Insert name of place of issue and date.) 
 
 "Permission is hereby given to (Insert name of 
 
 holder of permit) of , to carry (insert character of 
 
 weapon) for (insert duration of permit). 
 
 " Reason for granting permit. 
 (Here are to be inserted the reasons for issuing permit.) 
 
 " (Name and office of person issuing permit.)"
 
 596 NOTICE OF APPLICATION FOE CEETIORARI. 
 
 APPENDIX A. 
 GENERAL FORMS. 
 
 FORMS IN CERTIORARI PROCEEDINGS. 
 
 NOTICE OF APPLICATION FOB CEBTIOEABI. 
 
 In the (Name of Court to ~be applied to). 
 The King v. A. B. 
 To 
 
 J. S., Esquire, 
 
 One of His Majesty's Justices of the Peace (or Police Magistrate) for 
 the of . 
 
 TAKE NOTICE that, inasmuch as A. B., of was on the 
 
 day of 19 , at the of in the of 
 
 , convicted by you of having (Here state the offence, as in the con- 
 viction), a motion will on the day of instant at ten 
 o'clock in the forenoon, or so soon thereafter as counsel can be heard, be 
 made on behalf of the said A. B. before a Judge of this Honourable Court 
 sitting at for an order for a writ of certiorari to issue out of this 
 Court, directed to you and to the Clerk of the Peace for the of 
 , for the removal of the said conviction into this Court for the pur- 
 pose of having the same quashed and the said A. B. discharged therefrom, 
 upon the ground that the said conviction is invalid, (or, that the penalty 
 imposed is illegal and beyond or in excess of your jurisdiction, or as the 
 case may be), for the following reasons: (Here set out the reasons relied 
 upon). 
 
 Dated at this day of 19 . 
 
 C. D., 
 Solicitor for the said A. B. 
 
 AFFIDAVIT OF SEEVICE OF NOTICE. 
 
 In the (Name of Court to "be applied to). 
 The King v. A. B. 
 
 I, of , being duly sworn, make oath 
 
 and say : 
 
 1. That on the day of 19 , at I did serve 
 J. S., the Justice of the Peace (or Police Magistrate), named in the notice 
 hereunto annexed and marked exhibit A., with a true copy of the said 
 notice, by then and there delivering to and leaving with him the said true 
 copy of the said notice. 
 
 2. That I was present at the trial and conviction of the said A. B., of 
 the offence mentioned in the said notice ; and I personally know the person 
 so served by me as aforesaid to be the said J. S., the Justice (or Police 
 Magistrate) by whom the said conviction was made, (or otherwise, as the 
 case may be, showing the means of identification of the Justice or Magis- 
 trate). 
 
 SWORN, etc. 
 
 MOTION FOB CEBTIORARI. 
 
 In the (Name of Court applied to). 
 
 The King v. A. B. 
 
 MOTION, on the part of the defendant, that, 
 
 1. In view of the affidavit herewith filed of in verification 
 
 of exhibits B, C, D, and E, as true copies of the proceedings therein men- 
 tioned (or, if copies of the proceedings cannot be obtained, " explaining 
 the purport of the proceedings therein mentioned and setting forth the
 
 AFFIDAVITS IN SUPPORT OF MOTION ORDER FOR CERTIORARI. 597 
 
 efforts made to obtain and the reasons for not being able to obtain copies 
 thereof.") 
 
 2. And, in view of the hereunto subjoined affidavit of the defendant and 
 of the facts therein alleged and the grounds thereby appearing. 
 
 A writ of certiorari be ordered to issue for the removal into this Hon- 
 ourable Court of the said conviction and warrant of commitment, for the 
 purpose of having the same quashed and the defendant discharged there- 
 from. 
 
 Of counsel for the said A. B. 
 
 AFFIDAVIT AS TO PROCEEDINGS. 
 
 In the (Name of Court applied to). 
 
 The King v. A. B. 
 
 I, of , , being duly sworn, made oath and 
 
 say : 
 
 1. That the several paper writings hereunto annexed, marked respec- 
 tively B, C, D and E, to this my affidavit, are true copies of the original 
 documents of which they severally purport to be copies and were copied by 
 me from the originals now in the hands of J. S. Esquire, a Justice of the 
 Peace (or Police Magistrate) for the , of , (or now on 
 file in the office of the clerk of the peace for the of ) . 
 
 2. That I have examined and carefully compared the warrant of commit- 
 ment now in the hands of the keeeper of the common gaol for the county 
 of , (or as the case may be), upon which the said A. B. is now 
 held in custody in the said gaol, (or is committed under the said conviction, 
 or as the case may be) ; and that the paper writing hereunto annexed 
 marked exhibit , to this my affidavit, is a true copy of the said 
 warrant of commitment. 
 
 SWORN, etc. 
 
 AFFIDAVIT OF DEFENDANT. 
 
 In the (Name of Court applied to). 
 
 The King v. A. B. 
 
 I, A.B., of , in the of , being 
 
 duly sworn, make oath and say : 
 
 1. I am the defendant above named. 
 
 2. (Set forth the facts showing the conviction and warrant of commit- 
 ment to be bad, and the grounds upon which the application for certiorari 
 and for quashing the conviction are based.) 
 
 SWOEN, etc. 
 
 ORDER FOR CERTIORARI. 
 
 In the (Name of Court). 
 
 Tuesday, the day of 
 
 Present (Name of Judge.) 
 The King v. A. B. 
 
 UPON the application of the said A. B., upon reading the notice served 
 herein and the affidavit of service thereof upon J. S. Esquire, the justice of 
 the peace (or police magistrate) therein named and upon reading the affi- 
 davit of filed, and the exhibits therein referred to, and the affi- 
 davit of the said A. B. and the other papers filed on his behalf upon this 
 motion, and upon hearing what was said by the respective solicitors (or 
 counsel) for the said A. B., and for the prosecutor E. F., and also for the 
 convicting or committing magistrate (or, as the case may be). 
 
 IT is ORDERED that a writ of certiorari do issue out of this Court 
 directed to J. S. Esquire, one of His Majesty's justices of the peace (or 
 police magistrate) for the of , (as the case may be), to remove
 
 598 FORM OF WRIT OF CERTIORARI AND RECOGNIZANCE. 
 
 and return into this Court all and singular the conviction and all other pro- 
 ceedings, and all things touching the same, had and taken against the said 
 A. B. before the said justice of the peace (or police magistrate) upon the 
 information of for that the said A. B., etc., (Here set out the 
 
 charge) . 
 
 WRIT OF CEBTIORARI TO A JUSTICE OF THE PEACE TO RETURN A CONVICTION. 
 
 Canada, \ GEORGE THE FIFTH, by the Grace of God, of the 
 
 Province of , United Kingdom of Great Britain and Ireland, 
 
 County of , ' and of the British Dominions beyond the seas, 
 
 . KING, Defender of the Faith. 
 
 To , one of our justices, assigned to keep our peace, 
 
 in and for the county (or district) of and also to hear and 
 
 determine divers offences in the said (county) committed. 
 
 GREETING : 
 
 WE, being willing for certain reasons <that all and singular records of 
 conviction of whatsoever trespasses and contempts against the Criminal 
 Code of Canada (or against the form of a certain statute, etc.), whereof 
 A. B. is before you convicted (as it is said) be sent by you before us, DO 
 COMMAND YOU that you send under your hand and seal before this Honour- 
 able in days from (or immediately on 
 the receipt of this writ) all and singular the said records of conviction with 
 all things touching the same, as fully and perfectly as they have been made 
 by you and now remain in your custody or power, together with this our 
 writ, that we may further cause to be done therein what of right and 
 according to law we shall see fit. 
 
 IN WITNESS WHEREOF, WE have caused the seal of our Court of 
 to be hereunto affixed at otir (city) of this day of 
 
 in the year of our reign 
 
 Clerk of the Crotc-n. 
 
 CERTIORARI RECOGNIZANCE. 
 
 BE IT REMEMBERED, that, on the day of in the 
 
 year of the reign of Our Sovereign Lord, GEORGE THE FIFTH, 
 (etc.), G. H. of (merchant), and M. W. of (gentle- 
 
 man) came before me, J. S. Esquire, one of the keepers of the peace and 
 justices of Our Lord, the King, in and for the (county) of and 
 
 acknowledged to owe to Our Sovereign Lord the King the sum of 
 to be levied upon their goods and chattels, lands and tenements to His 
 Majesty's use, upon condition that if A. B. shall prosecute with effect, 
 without any wilful or affected delay, at his own proper costs and charges, 
 a writ of CERTIORARI issued out of the Court of our said Lord the 
 
 King, at . to remove into the said Court all and singular the 
 
 records of conviction of whatsoever trespasses and contempts against the 
 Criminal Code of Canada (or against the form of a certain statute, etc.), 
 whereof the said A. B. is convicted before me, the said J. S., and shall pay 
 to the prosecutors within next after the said record of 
 
 conviction (or order) shall be confirmed in the said Court, all their said 
 full costs and charges to be taxed according to the course of the said Court, 
 then this recognizance to be void, or else to remain in full force. 
 
 Taken and acknowledged the day and year aforesaid, at 
 before me, 
 
 J. S. 
 
 G. H. 
 M. W. 
 
 NOTE. A blank recognizance is usually transmitted with the writ of 
 certiorari from the office of the Court issuing it and when taken and 
 acknowledged the recognizance is returned with the writ. 
 
 If the conviction be quashed, the recognizance is cancelled by being 
 struck through, and is marked in the margin " discharged, because the con- 
 viction is quashed."
 
 AFFIDAVITS OF JUSTIFICATION AND EXECUTION. 599 
 
 FORM OF AFFIDAVIT OF JUSTIFICATION BY SURETY. 
 
 In the 
 
 The King.v. A. B. 
 
 1. E. F., of the of in the county of 
 (occupation) make oath and say : 
 
 - 1. That I am surety (or one of the sureties, as the case may be) 
 proposed and named for the above named A. B. in the recognizance in this 
 matter hereunto annexed. 
 
 2. That I am a freeholder (or householder) residing at No. St. 
 
 in of in the said county of 
 
 3. That I am worth property to the amount of one hundred dollars 
 over and above what will pay all my debts and liabilities and every other 
 sum for which I am now liable, or for which I am bail, or surety in any 
 other matter. 
 
 4. That I am not bail or surety for any other person except in this 
 matter and except (stating in what matter and for how^ much, if any). 
 
 5. That my said property to the amount of the said sum of $100 con- 
 sists of household furniture (or farm stock, implements, money deposited 
 in bank or bank stock or land, (describing it, or whatever it consists of), 
 to the value of about dollars. 
 
 Sworn before me at the 
 
 of in the L B. F. 
 
 County of on the 
 
 day of A. D. 19 . 
 
 Signed: O. P., 
 
 A Commissioner, etc. 
 
 FORM OF AFFIDAVIT OF EXECUTION. 
 
 In the 
 
 The King v. A. B. 
 
 I, M. N., of the of in the county of 
 
 (occupation) make oath and say: 
 
 1. That I was personally present and did see the hereunto annexed 
 recognizance duly signed, sealed and executed by A. B., and E. F. and G. H., 
 the parties thereto, and by R. S-, the justice of the peace for the said county 
 of , before whom the same was taken and acknowledged. 
 
 2. That the said recognizance was so executed, taken and acknow- 
 ledged at the of in the said county of 
 
 3. That I know the said parties and the said justice. 
 
 4. That I am a subscribing witness to the said recognizance. 
 
 Sworn before me at , 
 
 in the county of 
 this day of , A.D. 19 . 
 
 A Commissioner. 
 
 RETURN TO A WRIT OF CERTIORABI. 
 (To be Endorsed on the Certiorari). 
 
 The answer o the justice of the peace or police magistrate 
 
 within mentioned. 
 
 The execution of this writ appears in the schedule hereunto annexed. 
 
 Justice of the peace, 
 
 (or police magistrate.) 
 
 SCHEDULE. 
 
 (To be written as a separate document.) 
 
 I. one of the justices of the peace of Our Sovereign Lord 
 
 the King, assigned to keep the peace within the said (county) of
 
 600 FORMS ON MOTION TO QUASH CERTIOBABI. 
 
 and to hear and determine divers offences committed in the said (county), 
 by virtue of this writ of certiorari to me delivered, DO, under my seal, 
 CERTIFY unto His Majesty, in His Court of , the record of convic- 
 
 tion and all proceedings taken before me, of which mention is made in the 
 said writ. 
 
 In witness whereof, I have hereunto set my hand and seal at the 
 of this day of A.D. 19 . 
 
 All the proceedings should be attached to the certiorari and returned 
 as required by the writ. 
 
 If the conviction has been already filed with the clerk of the peace, the 
 return will be made by the latter; and the justice of the peace will, in the 
 schedule to his own return, explain the fact, as follows : 
 
 SUBSTITUTED SCHEDULE. 
 
 I, , one of the justices of the peace for Our Sovereign Lord, 
 
 the King, assigned to keep the peace within the said of 
 
 do certify that, before the receipt of the writ of certiorari, the record of 
 conviction and all proceedings taken before me of which mention is made 
 in the said writ were sent and delivered by me to the clerk of the peace of 
 the said , of , according to law and at the 
 
 time of the receipt of the said writ by me I had not nor have I now any of 
 the said proceedings remaining in my custody, control or keeping. 
 
 In witness whereof, I have hereunto set my hand and seal at the 
 of this day of A.D. 19 . 
 
 FORM OF NOTICE OF OBJECTION TO BE TAKEN TO CEBTIOBABI. 
 
 In the (Name of Court). 
 
 The King v. A. B. 
 
 TAKE NOTICE that upon the motion to quash the conviction of you, the 
 said A. B., objection will be taken on behalf of C. D., the prosecutor, (or 
 of G. H., the convicting magistrate or convicting justice), that the writ of 
 certiorari herein and the return thereto are invalid, on the ground that six 
 days' previous notice was not given to the said convicting magistrate 
 (or convicting justice), of the application for the said certiorari, (or that 
 the recognizance filed is insufficient, for the following reasons, [stating 
 them], or that there has been delay [mentioning the circumstances'] in 
 prosecuting the said writ of certiorari, etc., etc., or as the case may be). 
 
 Dated at . this day of , A.D. 19 , 
 
 B. F. 
 
 Solicitor for the said C. D., prosecutor, (or 
 G. H. the magistrate or justice above 
 named). 
 To the said A. B. 
 
 NOTICE OF MOTION TO SUPERSEDE CERTIOBABI. 
 
 In the (Name of Court). 
 
 The King v. A. B. 
 
 TAKE NOTICE that on the day of instant at ten 
 
 o'clock in the forenoon or so soon thereafter as counsel can be heard, a 
 motion on behalf of C. D., the prosecutor, (or of G. H., the convicting 
 magistrate or convicting justice), will be made before a Judge of this hon- 
 ourable Court, sitting at , for an order superseding and quashing 
 the writ of certiorari issued herein and for the return of the conviction and 
 other proceedings and papers, to the said convicting magistrate (or con- 
 victing justice or to the clerk of the Crown and peace for the county [or 
 district] of ) , on the ground that no notice was given to the said 
 magistrate (or justice), six days before the application for the said
 
 AFFIDAVIT IN SUPPORT OF MOTION MOTION PAPER. 601 
 
 writ as required by the statute in that behalf (or that the notice was in- 
 sufficient [giving reasons], or that no recognizance was filed as required by 
 law, or that the recognizance filed is insufficient [giving reasons], or was 
 not duly entered into and executed [giving reasons], or that there has been 
 delay [giving the circumstances] in prosecuting the said writ of certiorari, 
 etc., etc., (or as the case may be), and for an order directing you, the said 
 defendant, A. B., to pay to the said prosecutor, (or the convicting magis- 
 trate or justice), his costs of and incidental to the application for the said 
 writ of certiorari and this motion, and for such further order as may seem 
 meet. 
 
 AND TAKE NOTICE that upon this motion will be read the affidavit of 
 the exhibits therein referred to, and the proceedings and papers 
 herein. 
 
 Dated at this day of , A.D. 19 . 
 
 E. F., 
 
 Solicitor for the said C. D., prosecutor (or 
 G. H., the magistrate, or justice above 
 named). 
 
 To the said A. B., 
 and to 
 
 his Solicitor. 
 
 AFFIDAVIT IN SUPPORT OF MOTION TO SUPERSEDE CERTIORARI. 
 
 In the (Name of Court). 
 
 THE KING v. A. B. 
 
 I, , of the of in the county (or 
 
 district) of , make oath and say: 
 
 1. That I am the prosecutor (or the magistrate or justice) named in 
 the writ of certiorari issued herein, a true copy of which is now shown to me 
 marked Exhibit A. 
 
 2. That the notice of motion for the said writ of certiorari was served 
 on the magistrate (or justice, or me) less than six days, etc., (Here 
 state the facts clearly) [or, if no notice at all was served on the magistrate 
 or justice, state the fact, or if the objection is as to the insufficiency of the 
 sureties, state it fully, or if the ground of the motion is delay in prosecut- 
 ing -the writ and in moving to quash, or whatever else is or are the grounds 
 of the motion, set out the facts relied on.] 
 
 Sworn, etc. 
 
 MOTION PAPER ON APPLICATION TO QUAS^II. 
 
 In the 
 
 Before the Court the day of 
 
 A.D. 19 . 
 
 The King against A. B. 
 
 Motion on behalf of the above named A. B. upon reading the writ of 
 certiorari granted herein on the day of , A.D. 19 , 
 
 and the papers filed in Chambers on the application therefor, the return 
 to the said writ and the papers thereto attached, and the recognizance also 
 filed for an order calling upon C. D., Esquire, Justice of the Peace (or 
 Police Magistrate), for the of , and E. F. (the 
 
 informant), upon notice to them of such order to be given to them 
 respectively, to shew cause why the conviction of the said A. B., upon the 
 information of the said E. F. for that he did (set out the charge as in the 
 conviction), shoujd not be quashed with costs upon the following, among 
 other grounds: (State the grounds). 
 
 Of Counsel for the said A. B.
 
 602 RULES NISI AND ABSOLUTE TO QUASH CONVICTION. 
 
 BULK NISI TO QUASH A CONVICTION. 
 
 The King v. A. B. 
 
 In the 
 
 day, the day of , 
 
 A.D. 19 . 
 
 Upon the application of the said A. B. upon reading the writ of 
 certiorari issued on the day of , A.D. 19 , and 
 
 the papers filed in Chambers on the application therefor, the return of C. D., 
 Esquire, justice of the peace (or police magistrate), for the 
 of , or the clerk of the peace for the county of (as 
 
 the case may 'be), to the said writ and the papers thereto attached, and 
 also the recognizance entered into by the said A. B., with a surety (or 
 sureties) also filed, and upon hearing counsel for the said A. B. 
 
 It is ordered that C. D., Esquire, justice of the peace (or police 
 magistrate), for the of and E. F., the prosecutor, 
 
 upon notice to them of this order, to be given to them respectively, shall, 
 on the day of , A. D. 19 , at 
 
 o'clock, in the forenoon, or so soon thereafter as counsel can be heard 
 before this Court at , shew cause why a certain conviction made 
 
 by the said C. D., justice of the peace (or police magistrate), on the infor- 
 mation of the said E. F., whereby the said A. B. was convicted for that 
 (set out the charge as in the conviction), and which said conviction has 
 been removed into this Court under certiorari, should not be quashed with 
 costs, on the following grounds, amongst others: (Set out the grounds). 
 
 On motion of Mr. , of counsel for the said A. B. 
 
 By the Court. 
 
 Registrar. 
 
 RULE ABSOLUTE QUASHING CONVICTION. 
 
 In the the day of , 
 
 A.D. 19 . 
 The King against A. B. 
 
 1. Upon the application of A. B. upon reading the rule nisi issued on 
 the day of , A.D. 19 , and the affidavit of service 
 thereof, the writ of certiorari, dated the day of , A.D. 
 19 , the return of the said writ and the papers thereto attached, and the 
 recognizance filed, and upon hearing counsel for the prosecutor, E. F., and 
 for the appellant, A. B., and for C. D., Esquire, justice of the peace (or 
 police magistrate) (or no one appearing for the said E. F. or C. D., although 
 duly notified). 
 
 2. It is ordered that the conviction of the said A. B. by C. D., 
 Esquire, justice of the peace (or police magistrate) for the of 
 
 on information of the said E. F., for that (set out the charge) 
 be and the same is hereby quashed (and if costs are ordered) with costs 
 to be paid by the said to the said A. B. 
 
 3. And it is further ordered that the said A. B. be, and he is hereby 
 discharged from custody under the warrant of commitment issued upon 
 the said conviction. 
 
 4. And it is further ordered that no such action as is provided for by 
 section 1131 of the Criminal Code of Canada, and by the Revised Statutes 
 of , chapter , section , shall be brought against the 
 said C. D. and E. F., or either of them, or any person whomsoever. 
 
 On motion of Mr. , of counsel for said A. B. 
 
 By the Court. 
 
 Registrar.
 
 FORMS IN HABEAS CORPUS PROCEEDINGS. 603 
 
 FORMS IN HABEAS CORPUS PROCEEDINGS. 
 
 NOTICE OF APPLICATION FOB HABEAS CORPUS. 
 
 In the (Name of Court to be applied to). 
 
 The King (on information of A. B.) v. C. D. 
 
 TAKE NOTICE that a petition, on behalf of the said C. D., will on the 
 day of A.D. 19 , at o'clock in the forenoon or 
 
 so soon thereafter as counsel can be heard, be made to a Judge of this 
 honourable Court, in Chambers at , for the issue of a writ of 
 
 habeas corpus to the keeper of the common gaol (or penitentiary) of the 
 county (or district of directing him to have before a Judge of 
 
 (Name of Court), the body of the said C. D., a prisoner detained in his 
 custody, so that there may be caused to be done thereupon what of right 
 and according to law the Court shall see fit to be done, for the following 
 among other reasons. (State them.) 
 
 AND TAKE NOTICE that in support of the said petition there will be 
 read the affidavit of , herein filed therewith, and the exhibits 
 
 therein mentioned. 
 
 Dated at this day of 19 . 
 
 Solicitor for the said C. D. 
 
 To the said A. B. 
 
 To 
 
 the convicting justice (or magistrate). 
 
 And to 
 the Crown Attorney, (or Crown prosecutor), 
 
 or, as the case may be. 
 
 PETITION FOB HABEAS COBPUS. 
 
 In the (Name of Court). 
 
 The King v. C. D. 
 
 To the honourable (Name of Court), or to any one of the honourable 
 Judges thereof. 
 
 The petition of C. D., respectfully represents : 
 
 1. That, (State the facts from the laying of the information and the 
 issuing of the summons or warrant of arrest to the trial and conviction and 
 the issuing of the warrant of commitment thereon). 
 
 2. That, (State the grounds upon which it is contended that the warrant 
 of commitment, or the conviction upon which it is issued, or both, is or are 
 illegal) . 
 
 3. That your petitioner is unlawfully detained in the said common gaol 
 (or penitentiary) of the county (or district) of , and is en- 
 titled to be discharged therefrom and to be released and set at liberty. 
 
 Wherefore your petitioner prays that an order be made for the issue 
 herein of a writ of habeas corpus under which your petitioner may be 
 brought before one of the Honourable Judges of this Honourable Court, that 
 it be, thereupon, declared that the said warrant of commitment, (or the 
 said conviction, or both), is (or are) illegal, null and void, that your peti- 
 tioner is unlawfully detained and imprisoned, and is entitled to be dis- 
 charged from the said common gaol, (or penitentiary), and to be released 
 and set at liberty, and that he be accordingly ordered to be forthwith dis- 
 charged from the said common gaol, (or penitentiary), and to be released 
 and set at liberty. 
 
 Dated at this day of , 19 . 
 
 Solicitor for the petitioner.
 
 604 WRIT OF HABEAS CORPUS AND ORDER THEREFOR. 
 
 AFFIDAVIT IN SUPPORT OF PETITION. 
 
 I. C. D., the above named petitioner, being duly sworn, do depose and 
 say : 
 
 1. That the allegations of the foregoing petition are true. 
 
 2. That a copy of the said warrant of commitment is hereunto annexed 
 and marked exhibit " A." 
 
 And further the deponent saith not. 
 Sworn, etc. 
 
 ORDER FOR HABEAS CORPUS. 
 
 In the (Name of Court). 
 
 Before the Honourable Mr. Justice 
 In Chambers. 
 
 The day of , A.D. 19 . 
 
 The King v. C. D. 
 
 Upon the application of the said C. D., upon reading the petition and 
 affidavit of the said C. D.. herein filed, and a copy of the warrant of com- 
 mitment marked exhibit " A," annexed thereto, and upon hearing counsel 
 for the said C. D. 
 
 It is ordered that a writ of habeas corpus do issue out of this Court, 
 directed to the keeper of the common gaol, (or penitentiary), for the county 
 (or district), of , (or as the case may be), directing him to 
 
 have, before me (or a Judge of this Court), in Chambers, at 
 forthwith on receipt of the said writ, the body of C. D., a prisoner detained 
 in his custody, and that there be caused to be done thereupon what of right 
 and according to law shall be deemed fit to be done. 
 
 Registrar, (or clerk). 
 
 (N.B. The attendance of the prisoner at the argument upon a writ of 
 habeas corpus may be dispensed with by consent of his solicitor endorsed 
 upon the writ). 
 
 WRIT OF HABEAS CORPUS AD SUBJICIENDUM. 
 
 Canada. \ GEORGE THE FIFTH, by the grace of God, of the 
 
 Province of United Kingdom of Great Britain and Ireland 
 
 f and of the British Dominions beyond the seas. 
 
 County (or district) of J KING, Defender of the Faith. 
 
 To the keeper of our common gaol (or penitentiary) for our county (or 
 district) of , or his deputy or deputies, and to each of them. 
 
 GREETINGS : 
 
 WE COMMAND YOU that you have before the Honourable for 
 
 at the Judge's Chambers in the Court House in our (city) 
 
 of , immediately after the receipt of this writ, the body of 
 
 , being committed and detained in our prison (or penitentiary), 
 
 under your custody (as it is said), together with the day and cause of the 
 
 taking and detaining of the said by whatsoever name the 
 
 said be called in the same, to undergo and receive all and 
 
 singular such things as our said shall then and there consider 
 
 of him in that behalf, and that you have then and there this writ. 
 
 IN WITNESS WHEREOF we have caused the seal of our Court of 
 
 for (as the case may be), to be hereunto affixed, at our (city) of 
 , this day of in the 
 
 year of our reign. 
 
 Clerk of the Crown.
 
 RETURN OF WRIT DISCHARGE OF PRISONER. 605 
 
 RETURN OF WRIT OF HABEAS CORPUS. 
 
 By virtue of the within order, I, the keeper of the common 
 
 gaol (or penitentiary) at (etc.), do hereby return to the Honourable Mr. 
 Justice , (or as the writ directs), that C. D. is a prisoner in the 
 
 aforesaid, under a warrant of commitment hereunto annexed, 
 and that the said C. D. was committed to the said common gaol (or peni- 
 tentiary) under and by virtue of the said warrant of commitment on 
 
 ; and the said C. D. is now detained in the said common gaol (or 
 penitentiary) by virtue of the said warrant and for no other cause or reason 
 whatsoever, (or, as the case may be, with regard to other warrants of 
 detention, if any). 
 
 [Add, if the prisoner's attendance has not been dispensed with, a 
 clause stating that the body of the prisoner is produced.] 
 
 Dated at this day of A.D. 19 . 
 
 Keeper of ( etc. ) . 
 
 NOTICE OF MOTION FOR DISCHARGE. 
 
 In the (Name of Court). 
 
 The King v. C. D. 
 
 To , the convicting justice (or magistrate). 
 
 To , the prosecutor. 
 
 And to , the Crown Attorney (or Crown prosecutor, or as 
 the case may be). 
 
 Take notice that a motion will be made before a Judge of this Honour- 
 able Court sitting in Chambers at , on , at 
 o'clock in the forenoon, or so soon thereafter as counsel can be heard for 
 the discharge of the said C. D. from the common gaol (or penitentiary) of 
 (etc.), upon the return of the writ of habeas corpus herein issued, directing 
 the keeper of (etc.), to have before a Judge of this Honourable Court the 
 body of the said C. D., now in custody under a warrant of commitment 
 issued in pursuance of a conviction made by , Esquire, a justice 
 of the peace (or police magistrate), for (etc.) for that (Insert the charge 
 as in the conviction or warrant of commitment). 
 
 And take notice that in support of the said motion there will be read 
 the petition and affidavit of C. I)., and the exhibits therein mentioned, as 
 well as the return of the said writ of habeas corpus, and, [if such be the 
 case], the writ of certiorari issued in aid thereof. 
 
 Dated at this day of A.D. 19 
 
 Solicitor for the said C. D. 
 
 ORDER OF DISCHARGE ON HABEAS CORPUS. 
 
 In the (Name of Court). 
 
 Before the Honourable Mr. Justice , in Chambers (or, if 
 
 in Court). 
 
 Before the Honourable (Give the names of the Judges present). 
 (Tuesday) the day of , A.D. 19 . 
 
 The King v. C. D. 
 
 Upon the application of the said C. D., upon reading the writ of 
 habeas corpus herein issued on the , and the return made 
 
 thereto by , the keeper, [etc.], the writ of certiorari issued in 
 
 aid of the said writ of habeas corpus, upon reading the information, convic-
 
 606 CERTIORARI IN AID NOTICE OP MOTION. 
 
 tion and proceedings returned by , a justice of the peace (or 
 
 police magistrate) for (etc.), in compliance with the said writ of certiorari, 
 upon reading the petition and affidavit of the said C. D., and the exhibits 
 therein mentioned, and upon hearing counsel for the Crown, and for the 
 private prosecution, and for the said C. D., IT is OBDERED that the said C. 
 D. be, and he is hereby discharged from the custody, of the said , 
 
 the keeper of (etc.), as to the commitment made by the said , 
 
 Esquire, a justice of the peace (or the police magistrate), for (etc.), afore- 
 said, on the information of , for that (Set out the charge, as in 
 the warrant of commitment), in so far as the said C. D. is held under the 
 said warrant of commitment, and that this order be sufficient authority for 
 the said keeper (etc.), for the discharge of the said C. D. 
 
 Registrar (or clerk). 
 [Seal of -Court] 
 
 ORDER FOR CERTIORARI IN AID OF HABEAS CORPUS. 
 
 In the (Name of Court). 
 
 The King v. C. D. 
 
 Upon the application of the said C. D., upon reading the affidavit herein 
 filed of the said C. D., and the exhibits therein mentioned ; and a writ of 
 habeas corpus having been issued to bring the body of the said C. D. before 
 a Judge of this Court, 
 
 IT IS ORDERED that a writ of certiorari in aid of the said writ of habeas 
 corpus do issue out of this Court. (Proceed as in form of order for cer- 
 tiorari, at p. 597, ante. 
 
 Where the practice is to apply by notice of motion instead of by peti- 
 tion, the following form may be used : 
 
 NOTICE OF MOTION FOR WRIT OF HABEAS CORPUS. 
 In the 
 
 The King, on the information of E. F. against A. B. 
 
 Take notice that a motion will be made on behalf of the above-named 
 A. B. before the presiding Judge in Chambers at , on 
 
 the day of , A.D. 19 , at ten o'clock in the 
 
 forenoon, or so soon thereafter as the motion can be heard, whereon you 
 are to show cause why a writ of habeas corpus should not issue to the 
 keeper of the common gaol of the county of (or as the case may 
 
 be), directing him to have before a Judge of the , the body of 
 
 the said A. B., a prisoner detained in his custody, that the Court may 
 cause to be done thereupon what of right and according to law the Court 
 shall see fit to be done, and for a writ of certiorari in aid thereof, for th 
 following among other reasons : 
 
 I (State the 'reasons and grounds of application). 
 And take notice that in support of such application will be read the 
 affidavits of filed, and the exhibits therein referred to. 
 
 Dated at this day of A.D. 19 . 
 
 To the Attorney-General for the 
 Province of and to 
 
 the prosecutor, and to 
 
 the convicting magistrate 
 (or justice). 
 
 Solicitors for the 
 said A. B.
 
 TAKING EVIDENCE UNDER COMMISSION AFFIDAVIT. 60? 
 
 And the following form of affidavit may be used in support of the 
 notice of motion : 
 
 In the 
 
 The King against A. B. 
 
 I, A. B., of the of in the county of 
 
 (occupation), make oath and say: 
 
 1. I am the above named defendant. 
 
 2 That the paper writing shewn to me marked exhibit "A" to this 
 my affidavit is a true copy of the warrant of commitment produced to me 
 by the gaoler of the common gaol of the county of , as that 
 
 under which I am now held in close custody in said gaol. 
 
 3. That I am not held as a prisoner in the said gaol under any other 
 warrant. 
 
 Sworn, etc. 
 
 TAKING EVIDENCE UNDER COMMISSION. SECS. 995-997 OF 
 
 THE CODE. 
 
 AFFIDAVIT FOB COMMISSION TO EXAMINE WITNESS WHO IS 
 DANGEROUSLY ILL. SEC. 995 OF THE CODE. 
 
 In the Court of (Style of cause). 
 
 In the matter of an information laid by against 
 
 before , Esquire, a justice of the peace in and for the county 
 
 of , for an indictable offence, 'to wit: for that (state the 
 
 charge) . 
 
 I, , of the of in the county of 
 
 , (occupation), make oath and say: 
 
 1. I am the informant above-named. 
 
 2. On the day of , A.D. 19 , I duly laid an 
 information against the above-named , for the indictable offence 
 above mentioned, and the proceedings thereon are now pending before the 
 said justice. 
 
 3. That , of the of in the county of 
 
 , is a material and necessary witness, and is able to give material 
 information relating to the said offence, and he, the said , is, 
 
 as he has informed me in an interview which I had with him on the 
 day of instant, willing to give such information, which is (here 
 
 ttate in a general way the evidence which the witness is able to give so as 
 to shew its materiality). 
 
 4. That the said , according to the opinion of , 
 of , a duly licensed medical practitioner, which is now shewn to 
 me marked exhibit " A," to this my affidavit, and which was given to me 
 by the said on the day of its date, is dangerously ill and not 
 likely to recover from such illness, and the attendance of the said 
 
 to give evidence cannot by reason thereof be procured. 
 
 5. That , a justice of the peace residing at , is 
 a fit and proper person to take the evidence of the said witness. 
 
 6. The said is now in actual custody in the common gaol of 
 the county of , and has been served with the notice now shewn 
 to me marked " B." (See Code.) 
 
 Sworn, etc.,
 
 608 ORDER FOR COMMISSION FORM OF DEPOSITIONS. 
 
 ORDER APPOINTING A COMMISSIONER TO EXAMINE A WITNESS 
 DANGEROUSLY ILL. SEC. 995 OF THE CODE. 
 
 In the High Court of Justice. 
 The Honourable 
 Mr. Justice 
 
 In Chambers. 
 
 Tuesday, the day of A.D. 19 . 
 
 In the matter of, etc. (as in the above affidavit). 
 
 Upon the application of the above-named , upon reading the 
 
 affidavits of , and filed, and it appearing to my 
 
 satisfaction that one , a person who is dangerously ill, and who, 
 
 in the opinion of a duly licensed medical practitioner, is not likely to 
 recover from such illness, is able and willing to give material evidence 
 relating to the indictable offence above mentioned. 
 
 1. It is ordered that , of , a justice of the peace 
 in and for the county of , or, as the case may be), be and he is 
 hereby appointed a commissioner to take in writing the statement on oath 
 or affirmation of the said , pursuant to section of the 
 Criminal Code of Canada, the examination of the said witness to be 
 viva voce. 
 
 2. And it is further ordered and directed that the keeper of the com- 
 mon gaol for the county of , in whose custody the above- 
 named now is, do convey the said to the , 
 in the of , on the day of , 
 A.D. 19 , at o'clock in the noon, being the place mentioned 
 in the notice served on the said C. D. of an intention to take the said state- 
 ment, for the purpose of being present at the taking of the said statement. 
 
 FORM OF DEPOSITIONS TAKEN ON COMMISSION. SEC. 995. 
 
 (To be attached and returned with the commission). 
 
 Canada ] The depositions of , of the 
 
 Province of L of in the county of 
 
 County of (occupation), 
 
 Taken on oath (or affirmation) before the undersigned , the 
 
 commissioner named in the commission hereto annexed, at the 
 of , in the county of , on this day of , 
 
 A.D. 19 , under the said commission, in the presence and hearing of 
 
 , named in the said commission (or after notice to the said 
 ), and of (the prosecutor), also named therein (or after 
 
 notice to him). 
 
 The said deponent, , upon his oath (or affirmation), says 
 
 as follows : 
 
 (Here insert the witness's statement in the words used by him as nearly 
 as possible, and at its conclusion have the same signed at the foot by the 
 witness and also by the commissioner). 
 
 The depositions of the above named , written on the several 
 
 sheets of paper, to the last of which my signature is subscribed, were 
 taken in the presence and hearing of the above-named and , 
 
 and signed by the said in their presence, and I further certify 
 
 that the solicitor or counsel for the said ( or , naming 
 
 the prosecutor or defendant as the case may be against whom the evidence 
 is to be used) had (or might or would have had if he had chosen to be 
 present, as the case may be) full opportunity of cross-examining (and did 
 cross-examine if it be the case) the said witness, , upon his said 
 
 examination before me under the said commission. 
 
 Dated at this day of A.D. 19 . 
 
 Commissioner. 
 
 Note. A notice should be served upon the opposite party, giving the 
 time and place where the examination is to take place.
 
 COMMISSION TO TAKE EVIDENCE OUT OF CANADA. 609 
 
 NOTICE OF MOTION FOE COMMISSION TO TAKE EVIDENCE OUT 
 OF CANADA. SEC. 997 OF THE CODE. 
 
 In the Court of 
 
 (Style of cause). 
 
 Take notice that an application on behalf of the above named (or as 
 the case may be) will be made to the Honourable the presiding Judge in 
 Chambers, of the Court of at the Court 
 
 House in the of , on , the day 
 
 of , A.D. 19 , at ten o'clock in the forenoon, or so soon 
 
 thereafter as the application can be made, for an order appointing a com- 
 missioner to take the evidence viva voce, upon oath or affirmation, of , 
 a witness who resides out of Canada, and is able to give material informa- 
 tion relating to the charge of an indictable offence, for which a prosecu- 
 tion is now pending upon the information of the above-named , 
 against the above-named , for that (state the charge). And take 
 notice that the name and address of the commissioner proposed to be so 
 appointed is , of the of , in the State of 
 , one of the United States of America (or as the case may 6e, 
 adding the person's occupation). And further take notice that upon such 
 application will be read the affidavit of the said , this day filed, 
 and the exhibits therein referred to. 
 
 Dated at this day of A.D. 19 
 
 To 
 
 The above-named ( or ), and to Solicitor for the 
 
 his Solicitor. said 
 
 AFFIDAVIT FOE COMMISSION TO TAKE EVIDENCE OUT OF CANADA. SEC. 997. 
 
 (Style of cause). 
 I, , make oath and say : 
 
 1. I am the above-named informant in this matter. 
 
 2. On or about the day of . , A.D. 19 , I duly 
 laid an information against the above-named , before , 
 Esquire, a justice of the peace in and for the county of , for an 
 indictable offence, namely, that (set out the charge). 
 
 3. The prosecution of the said , for the said offence is now 
 pending before the said justice of the peace. 
 
 4. That , a person who resides at , out of Canada, and 
 is not now in Canada, is, as I am informed and verily believe, able to give 
 material information relating to the said offence, such information being 
 that (state in a general way the evidence the witness will give, so as to 
 satisfy the Court that it is material). 
 
 5. That , of (residence and occupation), is, as I am informed and 
 believe, a fit and proper person to be appointed a commissioner to take the 
 evidence of the said 
 
 SWOEN, etc. 
 
 OEDEB APPOINTING COMMISSIONER TO TAKE EVIDENCE OUT OF CANADA. 
 
 (Section 997). 
 
 (Style of cause). 
 
 Upon the application of the above-named , and upon reading the 
 
 affidavit of filed, and upon hearing both parties by their solicitors 
 
 or counsel, and it appearing that , who resides out of Canada, is able 
 
 to give material information relating to an indictable offence for which a 
 prosecution is now pending in this matter ; 
 
 1. It is ordered that of (residence and occupation) be and he is 
 
 hereby appointed a commissioner to take the evidence viva voce upon oath 
 
 C.C.P. 39
 
 610 STATING A CASE UNDER SECTIONS 761-764. 
 
 or affirmation of the said , at aforesaid, and that a com- 
 
 mission do issue for that purpose under the seal of this Court directed to 
 the said commissioner. 
 
 2. That days' previous notice of the mail or other conveyance, 
 
 by which the said commission is to be sent out, shall be given by the said 
 to the said , or to his solicitor. 
 
 STATING A CASE UNDER SECTIONS 761-764 OF THE CODE. 
 
 FORM OF CERTIFICATE OF REFUSAL TO STATE A CASE UNDER SECTION 763. 
 
 I, , a justice of the peace in and for the county of , 
 
 do certify at the request of , who was on the day 
 
 of , A.D. 19 , summarily convicted before me on the informa- 
 
 tion of for (state the charge) that after the said conviction was 
 
 made, namely, on the day of , A.D. 19 , the 
 
 said desiring to question the said conviction on the ground that 
 
 it is erroneous in point of law in that (state the ground of objection), or 
 that the same is in excess of my jurisdiction as such justice (or as the case 
 may be), applied to me as such justice to state and sign a case setting forth 
 the facts of the case and the grounds on which the said conviction is ques- 
 tioned. And I further certify that the said application being in my opinion 
 merely frivolous (or if the question raised is one of fact and not upon a 
 point of law or jurisdiction so state). I did thereupon refuse to state a 
 case thereon ; and this certificate thereof is signed and delivered by me to 
 the said at his request pursuant to section 763 of the Criminal 
 
 Code of Canada. 
 
 Given under my hand at the of in the county 
 
 .of this day of , A.D. 19 
 
 Justice of the peace. 
 
 AFFIDAVIT UPON APPLICATION FOR RULE TO COMPEL A JUSTICE TO STATE A 
 CASE UNDER SECTION 764. 
 
 In the (title of court.) 
 
 In the matter of The King on the information of against 
 
 I, of the of , in the county of , 
 
 make oath and say : 
 
 1. That I am the above named defendant 
 
 2. That on the day of , A.D. 19 , I was 
 served with a summons (or arrested on a warrant) herein, a true copy of 
 which is now shewn to me, marked exhibit A, and issued upon an informa- 
 tion, a true copy of which is now shewn to me marked exhibit 
 
 3. On the day of , A.D. 19 , I appeared 
 before , Esquire, the justice of the peace named in the said 
 proceedings, to answer to the charge therein mentioned, and the said justice 
 thereupon proceeded to hear and determine the said charge in presence of 
 the said informant A. and myself, and upon hearing the evidence the justice 
 convicted me of the said charge. 
 
 4. That the paper writing now shewn to me marked exhibit is a true 
 copy of the evidence upon the said hearing as taken down by the said justice. 
 
 5. That upon the said hearing I took the objection before the said 
 justice that the said conviction was erroneous in point of law (or was in 
 excess of his jurisdiction) upon the grounds following (here state the ques- 
 tions of law or jurisdiction raised.) 
 
 6. That I thereupon applied to the said justice to state a case for the 
 opinion of this court upon the said questions so raised, but he refused to do 
 so upon the ground that the same were merely frivolous, and a certificate 
 of such refusal was then granted by the said justice, which certificate is 
 now shewn to me marked exhibit 
 
 7. (State any further facts which the circumstances require.)
 
 RULES NISI AND ABSOLUTE TO STATE A CASE. 611 
 
 RULE NISI TO COMPEL A JUSTICE TO STATE A CASE UNDER SECTION 764. 
 
 In the Court of 
 The Honourable Mr. Justice day ^ 19 day of 
 
 In the matter of the King upon the information of against 
 
 Upon the application of the said , upon reading the certificate 
 
 of , one of His Majesty's justices of the peace in and for the 
 
 county of , of his refusal to state a case for the opinion of this 
 
 court, at the request of the said , touching the question of the 
 
 validity of a certain conviction made on the day of , 
 
 A.D. 19 , by the said justice for that (set out the charge) upon the 
 ground that the same is erroneous in point of- law (or in excess of the said 
 justice's jurisdiction), upon reading the affidavit of the said , 
 
 and upon hearing counsel for the said : 
 
 It is ordered that the said and the said , upon 
 
 notice to them of^this order to be given to them respectively, shall on 
 the day of , A.D. 19 , at o'clock in 
 
 the forenoon, or so soon thereafter as counsel can be heard before this Court, 
 at , shew cause why the said , as such justice, should 
 
 not be ordered to state and sign a case for the opinion of this Court upon 
 the following questions : 
 
 1. (Set out the points of law on which the conviction is claimed to "be 
 erroneous, or the question as to the justice's jurisdiction.) 
 
 On motion of Mr. of counsel for the said 
 
 By the court, 
 
 RULE ABSOLUTE TO STATE A CASE UNDER SECTION 764. 
 
 In the Court of 
 
 The Honourable Mr. Justice . { day J^ ^ day of 
 
 In the matter of, etc., (as in the above form of rule nisi). 
 
 Upon the application of the above named upon reading the 
 
 rule nisi issued on the day of , A.D. 19 , the 
 
 therein mentioned certificate of , a justice of the peace for the 
 
 county of of his refusal to state a case (as in the above form of 
 
 rule nisi) upon reading the affidavits of and filed, 
 
 and upon hearing counsel for the said , and , 
 
 the convicting justice, respectively (or no one appearing for the said 
 although duly notified). 
 
 1. It is ordered that the said do forthwith state and sign 
 and transmit to this court, a case for the opinion of this court upon the 
 following questions : 
 
 (1) (Set out the questions to be submitted). 
 
 2. And it is further ordered that the costs of and incidental to this 
 application be paid by the said to the said forth- 
 with after taxation thereof. 
 
 On motion of Mr. counsel for the said 
 
 By the court. 
 
 FORM OF CASE STATED. 
 
 (Section 761.) 
 In the Court of 
 
 In the matter of the King upon the information of (Respondent) 
 
 and (Appellant).
 
 612 FORM OF STATED CASE RECOGNIZANCE ON. 
 
 Case stated by , one of His Majesty's Justices of the Peace 
 
 in and for the county of under the provisions of section 761 of 
 
 the Criminal Code of Canada. 
 
 1. On the day of A.D. 19 , an information 
 was laid, under oath, before me by the above named , for that 
 the said on at (state the offence). 
 
 2. On the day of , A.D. 19 , the said charge 
 was duly heard before me in the presence of both parties, and, after hearing 
 the evidence adduced and the statements of the said and 
 
 and their solicitors (or counsel) I found the said guilty of the 
 
 said offence and convicted him thereof, but at the request of the solicitor 
 (or counsel) for the said I state the following case for the 
 
 opinion of this Honourable Court : 
 
 It was shewn before me that ( here set out the findings of fact under 
 which the point of law arises). 
 
 The solicitor (or counsel) for the said desires to question 
 
 the validity of the said conviction on the ground that it is erroneous in 
 point of law (or is in excess of jurisdiction) the questions submitted for the 
 judgment of this Honourable Court being: (here state the questions sub- 
 mitted, as for instance) . 
 
 1. Whether (here state points of law in question for the opinion of the 
 Court). 
 
 FORM OF RECOGNIZANCE ON CASE STATED. 
 
 (Sec. 762) 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 Be it remembered that on the day of , A.D. 
 
 19 , of the of in the county of 
 
 (occupation), of the same place (occupation) and 
 
 of the same place (occupation) personally came before me, the undersigned, 
 one of His Majesty's Justices of the Peace, in and for the said county 
 of and severally acknowledged themselves to owe to our Sovereign 
 
 Lord the King the several sums following, that is to say ; The said 
 the sum of dollars, and the said and the 
 
 sum of dollars each of lawful money of Canada to be made and 
 
 levied of their goods and chattels, lands and tenements respectively, to the 
 use of our said Lord the King, his heirs and successors, if he, the said 
 , fails in the condition hereunder written. 
 
 Taken and acknowledged the day and year first above mentioned at 
 the of in the county of before me, 
 
 [SEAL.] 
 
 Justice of the Peace, in and for the 
 County of 
 
 Whereas the above bounden was on the day 
 
 of A.D. 19 , convicted before , a justice of the 
 
 peace in and for the said county of for that the said 
 
 (state the charge) and afterwards on the day of , 
 
 A.D. 19 , the said desiring to question the said conviction 
 
 on the ground that it is erroneous in point of law (or is in excess of juris- 
 diction) applied to the said as such justice to state and sign a 
 case for the opinion of (name the court). 
 
 The condition of the above written bond or obligation is such that if 
 the said shall prosecute his appeal without delay and submit to 
 
 the judgment of the said Court of and pay such costs 
 
 as shall be awarded by the same ; and further, if the said shall 
 
 appear before the said the same justice by whom he was con- 
 
 victed as aforesaid or such other justice as is then sitting, within ten days 
 after the judgment of the said court has been given, to abide such judgment, 
 unless the judgment appealed against is reversed, then the recognizance to 
 be void, otherwise to stand in full force and virtue. 
 
 Taken and acknowledged before me J.P.
 
 APPLICATION FOR AEREST OF PERSON OUT ON BAIL. 613 
 
 FORM OF ORDER ON HEARING OF STATED CASE. 
 
 (Sec. 765) 
 
 In the Court of 1 
 
 Before the Hon. Mr. Justice I The K * upo ? mformatlo n of 
 
 In Chambers. j appellant hereunder. 
 
 Upon the application of the above named , upon reading the 
 
 Case stated by , Esquire, a Justice, of the Peace for the county 
 
 of in this matter touching the question of the validity of a cer- 
 
 tain conviction of the said made by the said Justice of the 
 
 Peace on the day of , A.D. 19 , for that (set out 
 
 the charge) upon the grounds that the same is erroneous in point of law 
 (or in excess of jurisdiction or as the case may be) and submitting the 
 following questions for the opinion of this Court thereon, namely: 
 
 1. (Set out the questions submitted.) 
 
 and respectively (or no one appearing for the said 
 
 although duly notified). 
 
 It is ordered that the said conviction be and the same is hereby affirmed 
 (or quashed, as the case may be). 
 
 2. And it is further ordered that the costs of and incidental to this 
 application be paid by the said to the said forthwith 
 after taxation thereof. 
 
 APPLICATION FOE APPREHENSION OF PERSON BAILED AND ABOUT TO ABSCOND 
 UNDER SECTION 703 OF THE CODE. 
 
 Form of Information. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 The information of of the of in the 
 
 county of (occupation), taken this day of , 
 
 A.D. 19 , before the undersigned , one of His Majesty's 
 
 Justices of the Peace in and for the county of who saith that 
 
 they, the said and , were on the day 
 
 of now past, severally and respectively bound by recognizance 
 
 before , Esquire, one of His Majesty's justices of the peace for 
 
 the said (county) of , in the sum of each, upon 
 
 condition that one , of, etc., should appear at the next term of 
 
 the Court of , for the district of , (or Court of Oyer 
 
 and Terminer and general gaol delivery, or Court of General Sessions of the 
 Peace), to be hoi den in and for the (county) of , and there 
 
 surrender himself into the custody of the keeper of the (common gaol) 
 there, and plead to such indictment as might be found against him by the 
 grand jury for or in respect to the charge of' (stating the charge shortly), 
 and take his trial upon the same and not depart the said Court without 
 leave ; and that these complainants have reason to suspect and believe and 
 do verily suspect and believe, that the said is about to depart 
 
 from this part of the country (here state reasons for belief), and therefore 
 they pray of me the said justice that I would issue my warrant of appre- 
 hension of the said , in order that he may be surrendered to 
 prison in discharge of them his said bail. 
 
 Taken before me, , Justice of the Peace.
 
 614 WARRANT AND COMMITMENT ABSCONDING DEFENDANT. 
 
 WABRANT TO APPREHEND TUB PERSON CHARGED UNDER SECTION 703 OF THE 
 
 CODE. 
 
 To all or any of the constables and other peace officers in the district 
 (or county, united counties, or as the case may be), of , 
 
 and to and , severally and respectively. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 Whereas you the said and , have this day 
 
 made complaint to me, the undersigned, one of His Majesty's justices of the 
 peace in and for the said (county) of , that you the said 
 
 and , were, etc., (as in the complaint, to the end) : These are 
 
 therefore to authorize you the said and , and also to 
 
 command you the said (constable or other peace officer), in His Majesty's 
 name forthwith to apprehend the said , and to bring him before 
 
 me or some justice or justices of the peace in and for the said (county), 
 to the intent that he may be committed to the (common gaol) in and for 
 the said (county), until the next Court of Order and Terminer and general 
 gaol delivery (or Court of General Quarter Sessions of the Peace), to be 
 holden in and for the said (county) of or, etc., as the case may 
 
 be), unless he find new and sufficient sureties to become bound for him in 
 such recognizance as aforesaid. 
 
 Given under my hand and seal, this day of , in 
 
 the year of our Lord , at , in the (county) aforesaid. 
 
 [SEAL.] 
 
 COMMITMENT OF THE PERSON CHARGED ON SURRENDER OF HIS BAIL AFTER 
 APPREHENSION UNDER A WARRANT. SECTIONS 703-704. 
 
 To all or any of the constables, or other peace officers in the district (or 
 county, united counties, or as the case may be) of , and 
 
 to the keeper of the common gaol of the district (or county, united 
 counties, or, as the case may be) at , in the said district 
 
 (or county, etc.), of 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 Whereas on the day of instant, complaint was 
 
 made to me the undersigned, one of His Majesty's justices of 
 
 the peace, in and for the said (county) of , by 
 
 and , of, etc., that (as in the complaint, to the end), I (or the 
 
 said justice) thereupon issued my warrant authorizing the said 
 and , and also commanding the said constables of 
 
 and all other peace officers in the said (county) of , in His 
 
 Majesty's name forthwith to apprehend the said 
 
 And whereas the said has been apprehended under the said 
 
 warrant, and is now brought before me, the undersigned, one of His 
 Majesty's justices of the peace in and for the said county of , and 
 
 it thereupon appearing to my satisfaction, upon hearing the evidence then 
 adduced in the presence of the said , that the ends of justice 
 
 would otherwise be defeated ; 
 
 These are therefore to command you, the said constables or peace 
 officers in His Majesty's name, forthwith to take and safely convey the 
 said to the said common gaol at , in the said county 
 
 of , and there deliver him to the keeper thereof ; and I hereby 
 
 command you, the said keeper, to receive the said into your 
 
 custody in the said common gaol, and him there safely to keep until his 
 trial, or until he produces another sufficient surety or sureties in this behalf. 
 
 Given under my hand and seal, this day of A. D. 19 .
 
 SUBPCENA FOR WITNESS IN ANOTHER PROVINCE. 615 
 
 APPLICATION FOB SUBPO3NA FOB WITNESS IN CANADA, BUT OUT OF THE 
 PBOVINCE. UNDEB SECTION 676 OF THE CODE. 
 
 Affidavit for Subpoena to Witness out of the Province. Section 676 of 
 
 the Code. 
 
 In the Court of 
 
 In the matter of an information laid by against 
 
 before , Esquire, a justice of the peace in and for the county 
 
 of , for that (state offence as charged). 
 
 I, , of, etc., make oath and say : 
 
 1. I am the above named informant, 
 
 2. That on the day of , A.D. 19 , I duly laid 
 an information before the above named justice of the peace, a true copy of 
 which information is now shewn to me, marked exhibit " A." 
 
 3. That the said justice of the peace thereupon issued his warrant for 
 the apprehension of the said , who has been arrested and is now 
 in custody (or on bail, or as the case may lie) upon the said charge, and the 
 said justice has appointed the day of , A.D. 19 , 
 for the holding of the preliminary inquiry upon the same, and the prosecu- 
 tion of the said upon the said charge is now pending before the 
 said justice. 
 
 4. That one, , is, as I am informed and believe, likely to give 
 material evidence for the prosecution respecting the said charge, the nature 
 of such evidence being, as I am informed and believe, that (state in general 
 terms the nature of the evidence so as to satisfy the judge or court that the 
 proposed witness is likely to give material evidence). 
 
 5. I am informed and believe that the said has in his posses- 
 sion or control certain documents relating to the matter in question, namely, 
 (state what documents are desired to be produced). 
 
 6. That the said resides at , in the Province 
 of , within the Dominion of Canada, and is out of the Province 
 of , and I desire that a subpoena should issue requiring the 
 said to appear before the said justice, at the said time and place, 
 to give evidence respecting the said charge, and to bring with him any docu- 
 ments in his possession or control relating thereto, and particularly the 
 documents above mentioned. 
 
 Sworn, etc. 
 
 OBDEB FOB SUBPCENA TO WITNESS OUT OF THE PBOVINCE. SECTION 676 OF 
 
 THE CODE. 
 
 In the Court of "\ day the 
 
 The Honourable day of 
 
 Mr. Justice f A.D. 19 . 
 
 In Chambers. J 
 
 In the matter of, etc. 
 
 Upon the application of , the informant above named, and it 
 
 appearing that one, , residing at the of , 
 
 in the Province of , out of this Province, and not being in this 
 
 Province, is likely to give material evidence for the prosecution in the above 
 matter now pending before the said justice, and that he is alleged to have 
 in his possession or control certain documents relating to the said charge, 
 and particularly the following (here state documents of which production is 
 required) . 
 
 It is ordered that a writ of subpoena do issue out of this court, under 
 its seal, requiring the said to appear before , Esquire, 
 
 justice of the peace, at in the of in the county 
 
 of and province of on the day of 
 
 , A.D. 19 , to give evidence respecting the said charge, and 
 to bring with him and produce at the said time and place, any and all 
 documents in his possession, custody or control, relating to the said charge, 
 and particularly the documents above specially mentioned.
 
 616 AFFIDAVIT OF SERVICE OF SUBPOENA DISTRESS. 
 
 AFFIDAVIT OF SERVICE OF SUBPCENA OUT OF THE PROVINCE. SECTION 676 OF 
 
 THE CODE. 
 
 In the Court of 
 
 In the matter of, etc. 
 
 I, , of the .of in the county of , 
 
 in the Province of , make oath and say, as follows : 
 
 1. That I did on the day of , A.D. 19 , per- 
 sonally serve with the subpoena hereto annexed marked " A," by 
 delivering to and leaving with him the said , a true copy thereof 
 at the of , aforesaid. 
 
 2. That at the time of such service as aforesaid, I produced and 
 exhibited to the said , the original subpoena hereto annexed, and 
 that the said is personally known to me and is the person 
 named in the said original subpoena. 
 
 3. That in order to effect such service I necessarily travelled 
 miles. 
 
 4. That at the time of such service I paid to the said the 
 witness fees following, that is to say: 
 
 Sworn before me at the \ A Justice of the Peace in 
 
 Province of* " thta and for the count y of 
 
 day of , A.D. 19 . ) in the Province of 
 
 NOTE. The warrant for defaulting witness who has been served with 
 subpoena may be in form 15 of the Code. See section 677. 
 
 PROCEEDINGS UNDER WARRANT OF DISTRESS. SECTION 741 OF THE CODE. 
 
 For Forms of Warrant of Distress, see Forms 39 or 40 of the Code. 
 
 BAILIFF OR CONSTABLE'S INVENTORY OF GOODS SEIZED UNDER WARRANT OF 
 
 DISTRESS. 
 
 An inventory of goods and chattels by me this day seized and distrained 
 in the of in the county of by virtue of 
 
 a distress warrant issued by , Esquire, a justice of the peace in 
 
 and for the county of , dated the day of , 
 
 A.D. 19 , under a conviction (or order) made by the said as 
 
 such justice on the day of , A.D. 19 . That is 
 
 to say: (specify the articles seized). 
 
 Dated this day of , A.D. 19 . 
 
 Constable or Bailiff. 
 
 APPRAISEMENT. 
 
 We, and , having at the request of , 
 
 a constable of the county of , examined the goods and chattels 
 
 mentioned in the annexed inventory, do appraise the same at the sum of $ . 
 
 Witness our hands this day of , A.D. 19 .
 
 NOTICE OF SALE OF GOODS DISTKAINED. 617 
 
 NOTICE OF SALE OF GOODS DISTRAINED. 
 
 By virtue of a distress warrant issued by , Esquire, a justice 
 
 of the peace in and for the county of , under a conviction (or 
 
 order) made by the said justice against , I have distrained of the 
 
 goods and chattels of the said , to wit: (describe property). 
 
 Ml of which goods and chattels will be sold by public auction at 
 on the day of , A.D. 19 , at the hour of 
 
 o'clock in the noon. 
 
 Dated the day of , A.D. 19 . 
 
 Bailiff or Constable. 
 
 NOTE. Warrants of distress are directed to constables or peace officers. 
 Under section 2 of the Code, paragraph (26), a "peace officer" includes a 
 " bailiff." So a warrant of distress may be directed to a bailiff as well as 
 to a constable. 
 
 COBONEB'S WABBANT ISSUED UNDEB SECTION 667 OF THE CODE. 
 
 Canada, 
 
 Province of , 
 
 County of 
 
 To wit. 
 
 To all or any of the constables and other peace officers in the said county 
 of 
 
 Whereas of the of in the county 
 
 (occupation), has this day, upon an inquisition taken before 
 the undersigned, a coroner in and for the said county of been 
 
 charged with the manslaughter (or murder) of (or a man or a 
 
 woman, or a male or female child unknown) of the of 
 
 in, the county of . And whereas the said has not 
 
 already been charged with the said offence before a magistrate or justice. 
 These are therefore to command you in His Majesty's name forthwith to 
 take the said into custody and convey him (or her) with all 
 
 convenient speed before a magistrate or justice in and for the said 
 of to answer unto the said charge and to be further dealt with 
 
 according to law. 
 
 Given under my hand and seal this day of , A.D. 19 , 
 
 at the of in the county aforesaid. 
 
 [SEAL.] 
 Coroner, County of
 
 618 STATEMENTS OF OFFENCES IN INFORMATIONS. 
 
 APPENDIX B. 
 
 STATEMENTS OF OFFENCES IN NUMERICAL ORDER WITH THE SECTIONS 
 OF THE CODE-PART II. OF THE CODE. 
 
 STATEMENTS OF OFFENCES AGAINST PUBLIC ORDER. 
 TREASON. 
 
 (Section 78.) 
 
 On at within His Majesty's Dominions, A., 
 
 with divers other false traitors to the jurors unknown, and armed, arrayed 
 and assembled together in warlike manner, did levy and make war against 
 our Lord the King, with intent thereby to depose His Majesty from the 
 style, honour and royal name of the Imperial Crown of the United Kingdom 
 of Great Britain and Ireland and of his other Dominions. 
 
 ASSAULT ON THE KING. 
 
 (Section 80.) 
 
 A., on at a certain pistol which he the said A. 
 
 in his right hand then had and held, wilfully did point, aim and present 
 at ("at or near to") the person of our Lord the King, with intent thereby 
 then and there to alarm our said Lord the King. 
 
 INCITING TO MUTINY. 
 
 (Section 81.) * 
 
 A., on at for a traitorous and mutinous purpose 
 
 did endeavour to seduce one B., he the said B. then being a person serving 
 
 in His Majesty's forces on land, from his duty and allegiance to His 
 Majesty. 
 
 RIOT. 
 
 (Sections 87 and 88.) 
 
 On at A., B., and C., with divers other persons 
 
 to the jurors aforesaid unknown, unlawfully, riotously and in a manner 
 causing reasonable fear of a tumultuous disturbance of the peace, did 
 assemble together, and being so assembled together did then and there make 
 a great noise, and thereby began and continued for some time to disturb 
 the peace tumultuously. 
 
 NEGLECT TO SUPPRESS RIOT. 
 
 (Section 94.) 
 
 On at the city of within the jurisdiction of A., 
 
 then the mayor of and present in the city of there was a riot, 
 
 and the said A., then having notice thereof, without any reasonable excuse, 
 did omit to do his duty as such mayor in suppressing the said riot. 
 
 OMITTING TO AID PEACE OFFICER TO SUPPRESS RIOT. 
 
 (Section 95.) 
 
 On at , there was a riot, and that A., B., and C., 
 
 then and there present, being called upon and required by D., a peace 
 officer in the exercise of his duty in that behalf, to assist in suppressing the 
 said riot, did, without any reasonable excuse, omit to do so.
 
 STATEMENTS OF OFFENCES FOR INFORMATIONS. 619 
 
 RIOTOUS DESTRUCTION OF BUILDINGS. 
 
 (Section 96.) 
 
 A., on at , with two other persons at least, did 
 
 unlawfully, riotously and tumultuously assemble together to the disturb- 
 ance of the public peace, and with force did unlawfully demolish and pull 
 down (or begin to demolish, etc.)i a certain building of B. 
 
 RIOTOUS DAMAGE TO BUILDINGS. 
 
 (Section 97.) 
 
 A., on at , with two Other persons at least, did 
 
 unlawfully, riotously and tumultuously assemble together to the disturbance 
 of the public peace, and with force did unlawfully injure and damage cer- 
 tain machinery (or "a certain building") of B. 
 
 AFFRAY. 
 
 (Section 100.) 
 
 A., B., and C.D., on did commit the act of fighting on the 
 
 public street (or highway) in the said of (or, did 
 
 commit the act of fighting to the alarm of the public in the bar-room of 
 the hotel known as the Hotel in the said of , 
 
 being a place to which the public then had access (or state any other 
 public place) and did thereby then and there take part in an affray. 
 
 FORCIBLE ENTRY. 
 
 (Sections 102-103.) 
 
 A., B., C., and D., on at did, in a manner likely 
 
 to cause a breach of the peace, (or "in a manner likely to cause reasonable 
 apprehension of a breach of the peace"), enter on land (or "into a certain 
 dwelling-house"), situate and being at and then in the actual 
 
 and peaceable possession of E. 
 
 CAUSING DANGEROUS EXPLOSIONS. 
 
 (Section 111.) 
 
 On at , A., by certain explosive substance, 
 
 to wit, wilfully did cause an explosion of a nature likely to 
 
 endanger life, (or "of a nature likely to cause injury to property"). 
 
 ATTEMPT TO DESTROY PROPERTY WITH EXPLOSIVES. 
 
 (Section 112.) 
 
 On at . A. did wilfully place and throw, into 
 
 (or near) a certain building, (or ship), to wit, [Describe same], an explo- 
 sive substance, to wit, [Describe it], with intent to destroy (or damage) 
 the same (or any machinery, etc.) 
 
 MAKING, OR POSSESSING EXPLOSIVES. 
 
 (Section 113.) 
 
 On at , A., wilfully did make (or " have in his 
 
 possession" or "under his control") a certain explosive substance, to wit, 
 
 with intent, by means thereof, to endanger life (or 
 
 " to cause serious injury to property " or " to enable C. by means thereof, 
 to endanger life," or "cause serious injury to property.") 
 
 OR, 
 (Section 114.) 
 
 On at , A., did make ) or " knowingly have in 
 
 his possession" or "under his control") a certain explosive substance, to
 
 G20 STATEMENTS OF OFFENCES FOE INFORMATIONS. 
 
 wit, , under such circumstances as to give rise to a reasonable 
 
 suspicion that his making [ (or "having possession " or "control of") it 
 was not for a lawful object, the said circumstances being as follows: 
 (relate them.) ] 
 
 OFFENSIVE WEAPONS. 
 
 (Section 115.) 
 
 On at , A did carry (or " have in his possession," 
 
 or "custody") a certain offensive weapon, to wit, a sword (or ''an air- 
 gun," or "a dagger," or " a pistol," or "metal knuckles"), for a purpose 
 dangerous to the public peace. 
 
 TWO OR MORE PERSONS CARRYING OFFENSIVE WEAPONS. 
 
 (Section 116.) 
 
 A. B. and C. D., at , on , being together, did 
 
 both of them then and there openly carry offensive weapons, to wit, 
 (state what), in a public place, to wit (state where), in such a manner 
 and under such circumstances as were calculated to create terror and 
 alarm (state the manner and circumstances). 
 
 (Two justices required). 
 
 SMUGGLERS CARRYING OFFENSIVE WEAPONS. 
 
 (Section 117.) 
 
 On at A., did have possession of certain goods 
 
 to wit, (describe them) liable to seizure (or "forfeiture") under (men- 
 tion the Act or law) relating to inland revenue, (or " the customs," or 
 "trade," or "navigation") knowing them to be so liable, and that he did 
 then and there and at the same time carry a certain offensive weapon, to 
 wit, (describe it.) 
 
 CARRYING PISTOL OR AIR-GUN. 
 
 (Section 118.) 
 
 A. B., on , at , did unlawfully have upon his 
 
 person a pistol (or air-gun) elsewhere than in his own dwelling-house, shop, 
 warehouse, counting-house, or premises, to wit, (state where), the said A. 
 B. not then having a permit in Form 76 of the Criminal Code authorizing 
 him to have or carry the said 
 
 SELLING A PISTOL, ETC., TO A MINOR. 
 (Section 119.) 
 
 A. B., on , at , did unlawfully sell (or give) a 
 
 pistol (or " air-gun," or " certain ammunition for a pistol or air-gun ") to 
 a minor under the age of 16 years, to wit, to (name the minor). 
 
 SELLING A PISTOL OR AIR-GUN WITHOUT KEEPING A RECORD. 
 
 (Section 118 (e).) 
 
 A. B. (> on , at , did unlawfully sell a pistol 
 
 (or "an air-gun") to C. D. without keeping a record of such sale, and the 
 date thereof, and the name of the said purchaser thereof, and of the name 
 of the maker of the said pistol (or "air-gun") or of some other mark by 
 which the said pistol (or "air-gun") might be identified.
 
 STATEMENTS OF OFFENCES FOR INFORMATIONS. 621 
 
 HAVING WEAPON ON THE PERSON WHEN ARRESTED. 
 
 (Section 120.) 
 
 A. B., on , at , having been then and there arrested 
 
 on a warrant issued against him by C. D., Esquire, a justice of the peace 
 in and for the of , for an offence, to wit (state 
 
 the offence) ; [or, having been then and there duly arrested while com- 
 mitting an offence, to wit (state the offence),'] did then and there unlaw- 
 fully have upon his person when so arrested, a pistol (or "an air-gun"). 
 
 POINTING FIREARM (LOADED OR NOT) AT ANY PERSON. 
 
 (Section 122.) 
 
 A. B., at , on , did, without lawful excuse, un- 
 
 lawfully point at C. D. a firearm (or "an air-gun"). 
 
 CARRYING, OR HAVING, OR SELLING SHEATH KNIFE, ETC. 
 
 (Section 123.) 
 
 A. B., at , on , did unlawfully carry about his 
 
 person a bowie-knife (or "dagger," or "dirk," or "metal knuckles," or 
 " skull cracker," or " slung shot," or " other offensive weapon of the charac- 
 ter," stating what) ; or (did unlawfully and secretly carry about his per- 
 son an instrument loaded at the end ; or did sell, or expose for sale, a 
 bowie-knife, or any of the weapons above enumerated (naming it) ; or that 
 A. B., on , at , being then and there masked (or dis- 
 
 guised), did unlawfully, and while so masked (or disguised) carry (or 
 have in his possession) a fire-arm (or "air-gun"). 
 
 CARRYING SHEATH KNIFE. 
 
 (Section 124.) 
 
 A. B., at , on , was found in the town (or city) 
 
 of carrying about his person a sheath knife, he, the said A. B. 
 
 not being thereto required by his lawful trade or calling. 
 
 REFUSE TO DELIVER WEAPON TO JUSTICE. 
 
 (Section 126.) 
 
 A. B., at , on , being then and there attending (or 
 
 "on his way to attend") a certain public meeting at (describe it) did 
 unlawfully decline and refuse to deliver up peaceably and quietly to C. D., 
 a justice of the peace for the said of , within whose 
 
 jurisdiction the said public meeting was then appointed to be held, upon 
 demand then and there duly and lawfully made by the said justice of 
 the peace, a certain offensive weapon, to wit, a pistol (or describe the 
 weapon), with which he, the said A. B., was then armed (or which he, the 
 said A. B., then had in his possession). 
 
 UNLAWFUL OATH. ADMINISTERING OR TAKING. 
 
 (Section 130.) 
 
 A., on , at , did take (or " administer and cause 
 
 to be administered to B."), a certain oath and engagement purporting to 
 bind the said A., (or "B."), not to inform or give evidence against any 
 associate, confederate or other person of or belonging to a certain unlaw- 
 ful association or confederacy, to wit, (Describe the unlawful association or 
 confederacy) . (Add, in case of a charge for taking the oath, " he the 
 said A. not being then compelled to take the said oath and engagement." 
 or, in case of a charge for administering, " and which said oath and en- 
 gagement was then and there taken by the said B.")
 
 622 STATEMENTS OF OFFENCES FOE INFORMATIONS. 
 
 PIRACY. 
 
 (Section 137.) 
 
 A., B. and C., on , with force of arms upon the high seas, 
 
 to wit, in and on board a certain ship called the Alabama, in a certain 
 place upon the high seas, distant about ten leagues from Baltimore in the 
 United States of America, then being, did in and upon certain mariners to 
 the jurors aforesaid unknown, then and there being, piratically and violently 
 make an assault and them the said mariners put in bodily fear and danger 
 of their lives. 
 
 POSSESSING WEAPONS NEAR PUBLIC WORKS. 
 
 (Section 146.) 
 
 A. B., who was, at the time hereinafter mentioned, employed upon or 
 about a certain public work within the of , being a 
 
 place where the statute called an Act respecting the Preservation of the 
 Peace in the Vicinity of Public Works was then lawfully in force by pro- 
 clamation, did upon (or "after") the day named in the proclamation by 
 which the said Act was brought into force at the said of 
 
 unlawfully keep or have in his possession ( or " under his care or control " ) 
 within the said of , a certain weapon, to wit, a dirk 
 
 (or "describe the weapon"). 
 
 CONCEALING ARMS NEAR PUBLIC WORKS. 
 
 (Section 147.) 
 
 A. B., within the , of , being a place where the 
 
 statute known as an Act respecting the Preservation of the Peace in the 
 Vicinity of Public Works was then lawfully in force did unlawfully and 
 for the purpose of defeating the lawful enforcement of Part III. of the 
 Criminal Code of Canada, receive (or "conceal," or "aid in receiving," or 
 " procure to be received or concealed ") within the said place a certain 
 weapon, to wit, a dirk (or "describe the weapon") then belonging to (or 
 "in the custody of") C. D., a person then and there employed on or about 
 a certain public work (describing it), then being prosecuted at the said 
 of 
 
 PART IV. OF THE CODE. 
 
 STATEMENTS OF OFFENCES AGAINST THE ADMINISTRATION 
 OF LAW AND JUSTICE. 
 
 JUDICIAL CORRUPTION. 
 
 (Section 156.) 
 
 On , at , A., being a judicial officer, to wit. a 
 
 Judge of (name of court), did corruptly accept (or "obtain," or " agree 
 to accept" or "attempt to obtain") for himself (or for ) from 
 
 B., the sum of dollars [or a certain office, place or employment, 
 
 to wit. (Describe it) ] on account of \Oive particulars of the thing done 
 or omitted or to be done or omitted by A. in his judicial capacity of a Judge 
 of .] 
 
 CORRUPTION OF A MEMBER OF PARLIAMENT. 
 
 (Section 156.) 
 
 On , at , A., being a member of Parliament of 
 
 Canada (or "of the legislative assembly" or "council" of ) did 
 
 corruptly accept (or "obtain" or "agree to accept" or "attempt to ob- 
 tain") for himself (or "for ") from B., the sum of 
 dollars [or "a certain office, place or employment." to wit. (Describe it)], 
 on account of [Give particulars of the thing done or omitted, or to be done 
 or omitted by A., in his capacity of such member of the Parliament of 
 Canada, or of the legislative assembly or council of .]
 
 STATEMENTS OF OFFENCES FOR INFORMATIONS. 623 
 
 OFFICER TAKING BEIBE. 
 
 (Section 157.) 
 
 On , at , A., being a justice of the peace, (or 
 
 "a peace officer"), employed in the capacity of , for the 
 
 prosecution (or "detection" or "punishment") of offenders, did corruptly 
 accept (or "obtain," or "agree to accept" or "attempt to obtain") for 
 himself (or "for ") from B., the sum of dollars 
 
 [or a " certain office, place of employment, to wit, (Describe it) ] with in- 
 tent to interfere corruptly with the due administration of justice," (or "to 
 procure or facilitate the commission, by C., of a crime, to wit, the criminal 
 offence of ," or " to protect from detection or punishment one 
 
 C., who had committed, or was intending to commit a crime, to wit, the 
 criminal offence of "). 
 
 FRAUDS UPON THE GOVERNMENT. 
 
 (Section 158.) 
 
 On at , A. did give (or "offer") to B., a 
 
 person in the employment of the Government of Canada (or "to C., a 
 member of the family of B., a person in the employment of the Government 
 of Canada," or " to D., a person under the control of B., a person in the 
 employment of the Government of Canada") the sum of 
 dollars (or whatever the particular compensation or consideration may be) 
 with intent to obtain the assistance or influence of the said B. to promote 
 the procuring of a certain contract, to wit, (Describe it) with the Govern- 
 ment of Canada for the performance of the following work, namely, 
 (or as the case may be). 
 
 OR 
 
 (Section 158.) 
 
 On , at , A. did give (or "offer") to B., a per- 
 
 son in the employment of the Government of Canada (or " C., a member of 
 the family of B., a person in the employment of the Government of Canada, 
 or D., a person under the control of B., a person in the employment of the 
 Government of Canada") the sum of dollars (or whatever the 
 
 particular compensation or consideration may be) with the intent to obtain 
 the assistance and influence of the said B. to promote the procuring of the 
 payment of the price or consideration stipulated in a certain contract, to 
 wit, (Describe it), with the Government of Canada for the performance of 
 the following work, namely (or, as the^ case may be), [or to 
 
 promote the payment of any aid or subsidy payable in respect of a certain 
 contract, (etc.) ] 
 
 MUNICIPAL CORRUPTION. 
 (Section 161.) 
 
 On , at , A. did make an offer (or "promise" 
 
 or "agreement") to pay (or "give") the sum of dollars (or 
 
 whatever the material compensation or consideration may be) to B., a 
 member of the municipal council of for the purpose of induc- 
 
 ing him, the said B., to vote (or "to abstain from voting") at a meeting, 
 to wit, a meeting of the day of of the said muni- 
 
 cipal council of (or at a meeting, to wit, a meeting of the 
 
 , day of , of the committee of the said muni- 
 
 cipal council of ) in favour of (or "against") a certain 
 
 measure (or "motion" or "resolution" or "question") submitted to such 
 council (or "committee"). 
 
 PERJURY. 
 
 (Sections 170-172.) 
 
 A. committed perjury with intent to procure the conviction of B. for an 
 offence punishable with imprisonment for more than seven years, namely, 
 robbery, by swearing on the trial of B. for the robbery of C. at the Court 
 of Quarter Sessions for the county of , on the day 
 
 of , 18 ; first, that he, A., saw B. at on 
 
 the day of ; secondly, that B. asked A. to lend B. 
 
 money on a watch belonging: to C. ; thirdly, etc.
 
 624 STATEMENTS OF OFFENCES FOR INFORMATIONS. 
 
 PERJURY. 
 
 (Sections 170-172.) 
 
 A. committed perjury on the trial of B. at a Court of Quarter Sessions, 
 held at on for an assault alleged to have been com- 
 
 mitted by the said B. on C., at Toronto, on the day of by 
 
 swearing to the effect that the said B. could not have been at Toronto at 
 the time of the alleged assault, inasmuch as the said A. had seen him at 
 that time in Port Arthur. 
 
 SUBORNATION OF PERJURY. 
 
 (Section 174.) 
 
 Same as last form to the end, and then proceed: 
 
 And the jurors aforesaid further present, that before the committing of 
 
 the said perjury by the said A., to wit, on the day of , 
 
 at , C., unlawfully, did counsel and procure the said A. to do and 
 
 commit the said perjury. 
 
 TAKING REWARD FOR HELPING TO RECOVER STOLEN PRO- 
 PERTY. 
 
 (Section 182.) 
 
 On _ , at , A. did unlawfully and corruptly take 
 
 and receive dollars as a reward^for and under pretence or on 
 
 account of helping to recover a certain piano," (or twenty dollars in money 
 or a promissory note, or a horse), belonging to and theretofore stolen from 
 the said B., (or as the case may "be), the said A. not having used all due 
 diligence to bring to trial for such theft the person who committed it. 
 
 BREAKING PRISON. 
 
 (Section 187.) 
 
 On the day of , at , A. being then a 
 
 prisoner confined in lie common gaol or prison in and for the county of 
 , on a criminal charge, did unlawfully, by force and violence, 
 break the said gaol or prison, by then and there cutting and sawing two iron 
 bars of the said gaol or prison and by also then and there breaking, 
 cutting and removing a quantity of stone, parcel of the wall of the gaol 
 or prison aforesaid, with intent thereby, then and there, to set himself, the 
 said A., at liberty. 
 
 PART V. OF THE CODE. 
 
 STATEMENTS OF OFFENCES AGAINST RELIGION, MORALS AND 
 PUBLIC CONVENIENCE. 
 
 BLASPHEMOUS LIBEL. 
 
 (Section 198.) 
 
 On , at , A. did publish a certain blasphemous 
 
 indecent and profane libel of and concerning the Holy Scriptures and the 
 Christian religion, in one part of which said libel there were and are 
 contained amongst , other things certain blasphemous, indecent and pro- 
 fane matters and things of and concerning the Holy Scriptures and 
 the Christian religion, of the tenor following, that is to say [here set out 
 the libellous passage, and if there be another such passage in another part of 
 the publication introduce it thus: "and in another part whereof there were 
 and are contained, amongst other things, certain other blasphemous, inde- 
 cent and profane matters and things, of and concerning the Holy Scrip- 
 tures and the Christian religion, of the tenor following, tBat is to say." 
 etc., etc., and conclude the count thus] : to the high displeasure of Almighty 
 God, and to the great scandal and reproach of the Christian religion.
 
 MANNEB OF STATING OFFENCES. 625 
 
 OBSTRUCTING OFFICIATING CLERGYMAN. 
 
 (Section 199.) 
 
 A., on , at , unlawfully did by force (or threats 
 
 of force), obstruct or prevent B., a clergyman, from celebrating divine 
 service in the parish church of the parish of C., [or " in the performance 
 of his duty in the lawful burial of the dead in the church yard of the 
 parish church of the parish of C.] 
 
 STRIKING OR ARRESTING OFFICIATING CLERGYMAN. 
 
 (Section 200.) 
 
 A., on , at , did arrest B., a clergyman, upon a certain 
 
 civil process [or "did strike" or "did offer violence to B., a clergyman,"] 
 whilst he the said B., as such clergyman, was going to perform divine 
 service, he the said A., then well knowing that the said B. was a clergy- 
 man and was going to perform divine service. 
 
 DISTURBING A RELIGIOUS MEETING. 
 
 (Section 201.) 
 
 A., on , at , did wilfully disturb (or " inter- 
 
 rupt" or "disquiet"), an assemblage of persons, met for religious worship, 
 (or for a "moral" or " social " or "benevolent" "purpose"), by profane 
 discourse (or "rude or indecent behaviour" or "making a noise"), within 
 the place of such meeting, (or " so near to the place of such meeting as to 
 disturb the order or solemnity of it"). 
 
 SODOMY. 
 
 (Section 202.) 
 
 A., on , at , did assault, and then and there, 
 
 unlawfully, wickedly, and against the order of nature have a venereal affair 
 with and carnally know B., and then and there wickedly and against the 
 order of nature with the said B., did commit and perpetrate that detestable 
 and abominable crime of buggery. 
 
 BESTIALITY. 
 
 (Section 202.) 
 
 A., on , at , with a certain mare, ("any 
 
 other living creature"), wickedly, and against the order of nature, did have 
 a venereal affair, and, then and there, unlawfully, wickedly, and against the 
 order of nature, with the said mare, did commit and perpetrate that 
 detestable and abominable crime of buggery. 
 
 ATTEMPT TO COMMIT SODOMY. 
 
 (Section 203.) 
 
 A., on , at , did assault B., and then and there 
 
 did attempt to wickedly, and against the order of nature, have a venereal 
 affair with and to carnally know and commit and perpetrate with the 
 said B. that detestable and abominable crime of buggery. 
 
 INCEST. 
 
 (Section 204.) 
 
 On , at , A and B., then and there being and 
 
 knowing themselves to be brother and sister did commit incest (or "did 
 cohabit" or "have sexual intercourse") with each other. 
 
 C.C.P. 40
 
 626 MANNER OF STATING OFFENCES. 
 
 ACT OF GROSS INDECENCY. 
 
 (Section 206.) 
 
 On , at , A., a male person, in public (or 
 
 "in private") did commit an act of gross indecency with B., another 
 male person. 
 
 OR, 
 (Section 206.) 
 
 On .at , A., a male person, was a party to 
 
 the commission of (or " did procure the commission of " or " did attempt to 
 procure the commission of") an act of gross indecency, in public, (or "in 
 private") by B., also a male person, with C., another male person. 
 
 SELLING OR PUBLICLY EXPOSING AN OBSCENE PICTURE, ETC. 
 
 (Section 207.) 
 
 A., on , at , knowingly and without lawful justi- 
 
 fication or excuse, did manufacture ( or " sell " or " expose for sale," or 
 " expose to public view," or " distribute " or " circulate ") a certain obscene 
 book, (or "picture," or " protograph " or "model"), representing a naked 
 man or woman in a lewd, indecent and obscene posture (or as the case may 
 be), and having a tendency to corrupt morals. 
 
 SEDUCTION OF GIRL BETWEEN FOURTEEN AND SIXTEEN. 
 
 (Section 211.) 
 
 On at , A., did seduce [or " did have 
 
 illicit connection with "] B., a girl, of previously chaste character, then 
 being of (or "above") the age of fourteen years and under the age of 
 sixteen years. 
 
 SEDUCTION UNDER PROMISE OF MARRIAGE. 
 
 (Section 212.) 
 
 On at , A., being then above the age of 
 
 twenty-one years did, then and there, under promise of marriage, seduce 
 and have illicit connection with B., then being an unmarried female of 
 previously chaste character, and under twenty-one years of age. 
 
 SEDUCTION BY GUARDIAN OF WARD. 
 
 (Section 213 (a) ). 
 
 On at , A., then being the guardian 
 
 of B., then and there did seduce (or "did have illicit connection with") 
 the said B., his ward. 
 
 SEDUCTION OF FEMALE EMPLOYEE. 
 
 (Section 213 (6).) 
 
 On at A., did seduce (or "did have 
 
 illicit connection with") B., a woman of previously chaste character, and 
 then being under the age of twenty-one years, to wit, of the age of 
 years, and then also being in the employment of the said A. in the said A.'s 
 factory (or "mill," or "workshop," or "shop," or "store"). 
 
 PROCURING DEFILEMENT OF A WOMAN UNDER AGE. 
 
 (Section 216 ().) 
 
 On at A., did procure (or " did attempt 
 
 to procure") B., a girl, (or "woman") then under the ajre of twenty-one 
 years, to wit, of the age of years, and not being a prosti- 
 
 tute or of known immoral character, to have unlawful carnal connection 
 with another person (or "other persons").
 
 MANNER OF STATING OFFENCES. 627 
 
 ENTICING A WOMAN UNDER AGE TO PROSTITUTION. 
 (Section 216 (6).) 
 
 On at A., did inveigle, (or "entice"), 
 
 B., a girl (or "woman"), then under the age of twenty-one years, to wit, 
 of the age of years, and not being a prostitute or of known 
 
 immoral character, to a house of ill-fame, (or "assignation"), for the 
 purpose of illicit intercourse (or "prostitution"). 
 
 PROCURING A WOMAN TO BECOME A PROSTITUTE. 
 (Section 216 (c).) 
 
 On at A., did procure (or "attempt to 
 
 procure"), B., a woman (or "girl"), to become, within Canada, (or "out 
 of Canada"), a common prostitute. 
 
 PROCURING A WOMAN TO LEAVE CANADA FOR PROSTITUTION 
 
 ELSEWHERE. 
 (Section 216 (d).) 
 
 On at A., did procure (or "attempt to 
 
 procure"), B., a woman (or "girl"), to leave Canada with intent that 
 she should become an inmate of a brothel elsewhere. 
 
 PROCURING A WOMAN TO COME TO CANADA FOR 
 PROSTITUTION. 
 
 (Section 216 (e).) 
 
 On at A., did procure (or " attempt to 
 
 procure"), B., a woman (or "girl"), to come to Canada from abroad with 
 intent that she should become an inmate of a brothel in Canada. 
 
 PROCURING A WOMAN'S DEFILEMENT BY THREATS. 
 
 (Section 216 (g).) 
 
 On at A., by threats (or "intimida- 
 
 tion") did procure (or "attempt to procure") B., a woman (or "girl") 
 to have unlawful carnal connection within Canada (or "out of Canada"). 
 
 PROCURING A WOMAN'S DEFILEMENT BY FALSE PRETENCES. 
 
 (Section 216 (fc).) 
 
 On at A., by false pretences (or 
 
 "false representations"), did procure B., a woman, (or "girl"), not being 
 a prostitute or of known immoral character, to have unlawful carnal con- 
 nection within Canada (or "out of Canada"). 
 
 DEFILING BY MEANS OF DRUGS. 
 
 (Section 216 (i) .) 
 
 On at A., did apply (or " admin- 
 
 ister") to and cause to be taken by B., a woman, (or "girl"), a certain 
 drug to wit, (or " some intoxicating liquor," or some 
 
 other matter or thing, as the case may be), with intent to stupefy (or 
 "overpower") her the said B., so as thereby to enable the said A. (or " a 
 certain man, to wit, C.,") to have unlawful carnal connection with her the 
 said B. 
 
 CONSPIRACY TO INDUCE A WOMAN TO COMMIT ADULTERY OR 
 
 FORNICATION. 
 
 (Section 218.) 
 
 On at A. and B., did conspire, com- 
 
 bine, confederate and agree together, by false pretences, to induce C., a 
 woman, to commit adultery (or "fornication") with D.
 
 628 MANNER OF STATING OFFENCES. 
 
 A COMMON NUISANCE ENDANGERING LIFE, ETC. 
 
 (Section 222.) 
 
 At on , and on and at divers 
 
 other days and times, before and since that date, A., unlawfully and 
 injuriously did and he does yet continue to (set out the partciular act or 
 omission complained of) and thereby did commit and does continue to com- 
 mit a common nuisance endangering the lives (or "safety" or "health") 
 of the public. 
 
 A COMMON NUISANCE OCCASIONING PERSONAL INJURY. 
 
 (Section 222.) 
 
 At on , and on and at divers 
 
 other days and times, before and since that date, A., unlawfully and 
 injuriously did and he does yet continue to (set out the particular act or 
 omission complained of) and thereby did commit and does continue to com- 
 mit a common nuisance by which the public were and are obstructed in 
 the exercise or enjoyment of a right common to all His Majesty's subjects, 
 to wit, (set out the common right obstructed) and which common nuisance 
 did at aforesaid on the day of 
 
 occasion actual injury to the person of B. 
 
 OR. 
 
 (Section 222.) 
 
 At on , and on and at divers 
 
 other days and times, before and since that date, A., unlawfully and 
 injuriously did and he does yet continue to (set out the particular act or 
 omission complained of) and thereby did commit and does continue to com- 
 mit a common nuisance, endangering the property (or "comfort") of the 
 public and which common nuisance did at aforesaid on 
 
 the day of occasion actual injury to: 
 
 the person of B. 
 
 SELLING THINGS UNFIT FOR FOOD. 
 
 (Section 224.) 
 
 B. C., on at did unlawfully, knowingly 
 
 and wilfully expose for sale (or have in his possession with intent to sell) 
 for human food, a certain article to wit (name the article), which he, the 
 said B. C., then knew to be unfit for human food by reason of the same 
 being (state nature of un fitness). 
 
 KEEPING A BAWDY-HOUSE. 
 
 (Sections 225-228.) 
 
 At on , and on and at divers 
 
 other days and times since that date, A., and B., the wife of the said A., 
 did keep and maintain a disorderly house, to wit, a common bawdy-house, 
 by keeping and maintaining a certain house (or " room," or " set of rooms," 
 etc.), situate and being , for purposes of prostitution. 
 
 KEEPING A COMMON GAMING-HOUSE 
 
 (Sections 226-228.) 
 
 At on , and on and at divers 
 
 other days and times since that date, A. (or "A., B. and C."), did keep 
 and maintain a disorderly house, to wit, a common gaming-house by keeping 
 and maintaining for gain a certain house (or "room," etc.) situate and 
 being to which persons did and do resort for the 
 purpose of playing at games of chance, to wit, (or mixed 
 
 games of chance and skill, to wit ,)
 
 MANNER OF STATING OFFENCES. 629 
 
 OR, 
 
 (Section 228.) 
 
 (Commence as above) did keep and maintain a 
 
 disorderly house, to wit, a common gaming-house, by keeping ( or " using " ) 
 for gain, a certain house (or "room," etc.), situate and being 
 for playing therein at games of chance and mixed games of chance and 
 skill, and in which a bank was and is kept by one or more of the players 
 exclusively of the others, (or in which, in the games played therein, the 
 chances are not alike favourable to all the players). 
 
 VAGRANCY. 
 
 (Sections 238-239.) 
 
 (a) A. B., at , on , not having any visible 
 
 means of subsistence, was found unlawfully wandering abroad (or was 
 found lodging in a barn, or out-house, or in a deserted or unoccupied 
 building, (or in a cart or waggon) (or as otherwise stated in section 238 
 (a) ) and did not upon demand give a good account of himself, or not 
 having any visible means of maintaining himself, lives without employ- 
 ment), and is thereby a loose, IdTe and disorderly person and a vagrant. 
 
 OR, 
 
 (6) Being able to work and thereby (or by other means, stating them), 
 to maintain himself and family, wilfully and unlawfully refused or neglected 
 to do so, and is thereby, etc. 
 
 OR, 
 
 (c) Unlawfully did openly expose or exhibit in street (or road or 
 highway, or public place, to wit. state the place), an indecent exhibition 
 (see post, "Indecent Exhibitions," stating its nature in general terms), and 
 is thereby, etc. 
 
 OR, 
 
 (d) Was unlawfully wandering about and begging (or did unlawfully 
 go from door to door, or place himself in a street, or highway, or passage, 
 or public place, to wit, name it, to beg or receive alms), without a certifi- 
 cate signed within six months, by a priest, or clergyman, or minister of the 
 gospel, or two justices of the peace, (&c. See the text), and is thereby, etc. 
 
 OR, 
 
 (e) Did unlawfully loiter on a public street (or road, or highway, or 
 public place, to wit, describe where), and obstruct passengers by standing 
 across the footpath (or by using insulting language, to wit, state the 
 language used, or state any other way by which any passenger, on the icay, 
 was obstructed), and is thereby, etc. 
 
 OR, 
 
 (/) Did unlawfully cause a disturbance in (or near a street, or road, 
 
 or highway, or public place, describing it), by screaming, or swearing, or 
 
 singing, or by being drunk, or by impeding or incommoding peaceful pas- 
 sengers), and is thereby, etc. 
 
 OR, 
 
 (fir) By discharging fire-arms (or by riotous or disorderly conduct, to 
 wit, by, describe it), in a steet, or highway, in the said of , 
 
 wantonly and unlawfully disturbed the peace and quiet of the inmates of 
 the dwelling-house of C. D., situate near the said street or highway, and 
 is thereby, etc. 
 
 OR, 
 
 (h) Did unlawfully tear down or deface a sign (or break a window, or 
 a door, or a door-plate, or the wall of a house, or a road, or a garden, 
 or destroying a fence, describing the same), and is thereby, etc.
 
 630 MANNER OF STATING OFFENCES. 
 
 OR, 
 
 (t) Being a common prostitute (or night-walker), wandered in the 
 fields adjacent to the of (or in the public streets, or 
 
 highways, or lanes, or places of public meetings, or gathering of people, 
 stating where), and upon demand being thereupon made of her by G. D., a 
 peace officer of the said of , she unlawfully did not give a 
 
 satisfactory account of herself, and is thereby, etc. 
 
 OR, 
 
 (/) Was unlawfully a keeper (or inmate) of a disorderly house, to 
 wit, a common bawdy house (or house of ill-fame, or house for the resort of 
 prostitutes, see "Disorderly House"), and is thereby, etc. 
 
 OR, 
 
 (k) Was unlawfully in the habit of frequenting disorderly houses, or 
 bawdy houses ( or houses of ill-fame, or houses for the resort of prostitute^ ) , 
 and upon being required by C. D., a peace officer, did not give a satisfactory 
 account of herself, and is thereby, etc. 
 
 OR, 
 
 (I) Having no peaceable profession or calling to maintain himself by, 
 for the most part supports himself by gaming (or by crime, or by the avails 
 of prostitution), and is thereby, etc. 
 
 PART VI. OF THE CODE. 
 
 OFFENCES AGAINST THE PERSON AND REPUTATION. 
 
 OMISSION OF FATHER TO PROVIDE NECESSARIES FOR CHILD 
 UNDER SIXTEEN. 
 
 (Section 242.) 
 
 At on , and on and at divers 
 
 other days and times, before and since that date. A., being then and there 
 the father of B., a child under sixteen years of age, who was then and 
 there a member of the said A.'s household, and the said A., being, as such 
 father, under a legal duty and bound by law to provide sufficient food, cloth- 
 ing and lodging and all other necessaries for the said B., his said child, 
 did, in disregard of his duty in that behalf, then aDd there, refuse, neglect 
 and omit, without lawful excuse, to provide necessaries for the said B., his 
 said child, by means whereof the life of the said B. has been and is 
 endangered: (or "the health of the said B., is now and is likely to be per- 
 manently injured"). 
 
 OMISSION OF HUSBAND TO PROVIDE NECESSARIES FOR WIFE. 
 (Section 242.) 
 
 (Commence as above) A., the husband of B., being then 
 
 and there, as such husband, under a legal duty and bound by law to pro- 
 vide sufficient food, clothing and lodging and all other necessaries for B., his 
 said wife, did, in disregard of his duty in that behalf, then and there, 
 refuse, neglect and omit, without lawful excuse, to provide necessaries for 
 her the said B. by means whereof the life of the said B. has been and is 
 endangered, (or, " the health of the said B., is now and is likely to be per- 
 manently injured " ) .
 
 MANNER OF STATING OFFENCES. 631 
 
 OMISSION OF MASTER TO PROVIDE NECESSARIES FOR 
 SERVANT OR APPRENTICE. 
 
 (Section 243.) 
 
 (Commence as above) A., being then and there the 
 
 master of B., a servant, (or "an apprentice"), under the age of sixteen 
 years, and being then and there under contract and legally bound to pro- 
 vide necessary food, clothing and lodging for the said B., as his said servant, 
 (or "apprentice"), did in disregard of such contract and of the legal duty 
 imposed upon him by law, in that behalf then and there refuse, neglect 
 and omit, without lawful excuse, to provide necessary food, clothing and 
 lodging for the said B., by means whereof the life of the said B. has been 
 and is endangered: (or " the health of the said B. has been and is likely to 
 be permanently injured"). 
 
 ABANDONING CHILD UNDER TWO YEARS OF AGE. 
 (Section 245.) 
 
 On at A. unlawfully did abandon and expose 
 
 B., a child then under the age of two years, whereby the life of the said B. 
 was and is endangered; (or "the health of the said B. has been and is 
 permanently injured.") 
 
 CAUSING BODILY HARM TO SERVANT OR APPRENTICE. 
 (Section 249.) 
 
 On , at , A. being then and there the master 
 
 of B., a servant (or "an apprentice"), and being legally liable to provide 
 for the said B., as his servant (or " apprentice "), then and there unlawfully 
 did do and cause to be done bodily harm to the said B., whereby the life 
 of the said B. was and is endangered; (or "the health of the said B. has 
 been and is likely to be permanently injured"). 
 
 MURDER. 
 
 (Section 250.) 
 
 A. murdered B. at on 
 
 ATTEMPT TO COMMIT MURDER BY POISONING. 
 (Section 264 (a).) 
 
 At , on , A. did administer (or " cause to be 
 
 administered") to B. certain poison (or "a certain destructive thing" to 
 
 wit, ) with intent, thereby, then and there, ,to murder the said B. 
 
 (or "with intent thereby then and there to commit murder"). 
 
 ATTEMPT TO MURDER BY WOUNDING, Etc. 
 (Section 264 (6).) 
 
 At , on , A. did wound (or "cause grievous 
 
 bodily harm ") to B. with intent, thereby, then and there, to murder the said 
 B. (or "with intent, thereby, then and there, to commit murder").
 
 632 MANNER OF STATING OFFENCES. 
 
 ATTEMPT TO MURDER BY SHOOTING. 
 
 (Section 264 (c).) 
 
 At , on , A. did, with a certain loaded gun (or 
 
 "pistol," or "revolver") shoot (or "attempt to discharge a loaded arm") 
 at B., with intent, thereby, there and then, to murder the said B. (or 
 " with intent, thereby, then and there, to commit murder"). 
 
 ATTEMPT TO MURDER BY DROWNING, ETC. 
 (Section 264 (d).) 
 
 At , on , A. did attempt to drown (or " suffocate." 
 
 or "strangle") B., with intent, thereby, then and there, to murder the said 
 B., (or "with intent, thereby, then and there, to commit murder"). 
 
 ATTEMPT TO MURDER BY EXPLOSION. 
 
 (Section 264 (e).) 
 
 At on , A., did by the explosion of a certain 
 
 explosive substance, to wit, [describe the explosive], destroy (or " damage ") 
 a certain building situate and being in street, in 
 
 aforesaid, with intent, thereby, then and there, to murder B. (or "with 
 intent, thereby, then and there, to commit murder"). 
 
 ATTEMPT TO MURDER, BY ANY MEANS. 
 (Section 264 (h).) 
 
 At on , A., by then and there cutting the rope of 
 
 a certain hoist (or " breaking the chain of a certain elevator") in a certain 
 building situate and being in street in aforesaid 
 
 (or, otherwise describe the actual deed) did attempt to murder B. (or "to 
 commit murder"). 
 
 THREATENING, BY LETTER, TO KILL OR MURDER. 
 
 (Section 265.) 
 
 At on , A., did send (or "deliver") to (or 
 
 "cause to be received by") B., a certain letter (or "writing") threatening 
 to kill (or "murder") the said B., he the said A. then knowing the con- 
 tents of the said letter (or "writing"). 
 
 OR, 
 
 (Section 265.) 
 
 At on , A., did utter a certain writing, (or 
 
 "letter"), threatening to kill (or "murder") B., he tihe said A. then know- 
 ing the contents of the said writing (or "letter"). 
 
 CONSPIRACY TO MURDER. 
 (Section 266.) 
 
 At on , A., B., and C., did conspire and agree 
 
 together to murder D. (or "to cause D. to be murdered"). 
 
 COUNSELLING MURDER. 
 
 (Section 266.) 
 
 At on , A., did unlawfully counsel (or "attempt 
 
 to procure") B. to murder C.
 
 MANNER OF STATING OFFENCES. 633 
 
 MANSLAUGHTER. 
 (Section 262.) 
 
 A. unlawfully did kill and slay B., at on 
 
 OR, 
 
 (Section 262.) 
 
 At on , A. did slay and kill B., and did thereby 
 
 commit manslaughter. 
 
 AIDING AND ABETTING SUICIDE. 
 (Section 269). 
 
 At on . and on divers other days before that 
 
 date, A. did counsel and procure B. to commit suicide, in consequence of 
 which counselling and procuring by the said "A., the said B. then and there 
 actually did commit suicide. 
 
 ATTEMPT TO COMMIT SUICIDE. 
 (Section 270.) 
 
 A., at on , did attempt to commit suicide by 
 
 then and there endeavouring to kill himself. 
 
 NEGLECT TO OBTAIN ASSISTANCE IN CHILD-BIRTH. 
 
 (Section 271.) 
 
 At on , A., being then and there with child and 
 
 about to be delivered of such child, did, then and there, with intent that her 
 said child should not live, neglect to provide reasonable assistance in her 
 delivery, whereby and in consequence of which neglect her said child was and 
 is permanently injured (or "died during or shortly after birth"). 
 
 CONCEALMENT OF BIRTH. 
 
 (Section 272.) 
 
 On at , A. was delivered of a child, and that 
 
 subsequently on at aforesaid, the said child being 
 
 dead, the said A. (or " B.") did dispose of the dead body of the said child, 
 by secretly burying it (or state the actual means used), with intent to 
 conceal the fact that the said A. had been delivered of such child. 
 
 WOUNDING WITH INTENT TO MAIM, Etc. 
 (Section 273.) 
 
 On at , A., with intent to maim (or 
 
 "disfigure," or "disable" or "do grievous bodily harm to") B., did wound 
 (or "cause grievous bodily harm to") the said B. 
 
 OR, 
 (Section 273.) 
 
 On at , A., with intent to resist the lawful 
 
 apprehension (or "detainer") of him the said A. (or "of B.") did wound 
 (or "cause grievous bodily harm to") C.
 
 634 MANNEB OF STATING OFFENCES. 
 
 OR, 
 (Section 273.) 
 
 On at , A., with intent to resist the lawful 
 
 apprehension (or "detainer") of him the said A. (or "of B.") did, with a 
 certain loaded gun (or "pistol" or "revolver") shoot (or "attempt to 
 discharge a loaded arm ") at C. 
 
 WOUNDING, BODILY HARM. 
 (Section 274.) 
 
 On at , A., unlawfully did wound (or 
 
 "inflict grievous bodily harm upon") B. 
 
 WOUNDING A PUBLIC OFFICER. 
 (Section 275.) 
 
 At on , A. wilfully did maim (or " wound ") 
 
 B., a public officer engaged in the execution of his duty (or " a person acting 
 in aid of C., a public officer engaged in the execution of his duty"). 
 
 CHOKING OR DISABLING WITH INTENT TO COMMIT AN 
 INDICTABLE OFFENCE. 
 
 (Section 276.) 
 
 At on , A., with intent thereby to enable 
 
 him the said A. (or "one B.") to rob C., did attempt to choke (or "suffo- 
 cate," or "strangle") the said C. 
 
 OR, 
 
 (Section 276 (a).) 
 
 At on , A., with intent thereby to enable 
 
 him the said A., (or "one B.") to rob (or "to commit a rape upon") C., 
 did attempt to render the said C. insensible (or " unconscious," or " incap- 
 able of resistance") by gagging (or " garotting," or "sandbagging") or 
 [mention the actual means used], the said C., in a manner calculated to 
 choke, (or "suffocate," or "strangle") the said C. 
 
 DRUGGING WITH INTENT TO COMMIT AN INDICTABLE 
 
 OFFENCE. 
 (Section 276 (6).) 
 
 At on , A., with intent thereby to enable him 
 
 the said A. (or "one B.") to rob (or "to commit a rape upon") C., did 
 unlawfully apply and administer (or "attempt to apply and administer or 
 "cause to be administered") to (or "cause to be taken by") C., certajn 
 chloroform (or "laudanum") (or mention the stupefying or over-power- 
 ing drug, matter or thing used.) 
 
 ADMINISTERING POISON AND THEREBY ENDANGERING LIFE. 
 (Section 277.) 
 
 On at , A., unlawfully did administer 
 
 (or "cause to be administered") to (or " cause to be taken by") B., certain 
 poison (or "a certain destructive and noxious thing"), to wit, , 
 
 and did thereby endanger the life of (or "inflict grievous bodily harm 
 upon ") the said B.
 
 MANNER OF STATING OFFENCES. 635 
 
 ADMINISTERING POISON WITH INTENT TO INJURE. 
 
 (Section 278.) 
 
 On at , A., with intent thereby to injure (or 
 
 "aggrieve," or "annoy") B., unlawfully did administer (or "cause to be 
 administered") to (or "cause to be taken by") the said B., certain poison 
 (or "a certain destructive and noxious thing"), to wit, [describe the druy 
 or other noxious thing, and mention the quantity used.] 
 
 CAUSING BODILY INJURY BY EXPLOSION. 
 
 (Section 279.) 
 
 On at , A., by the explosion of a certain 
 
 explosive substance, to wit, , unlawfully did burn (or "maim," 
 
 or "disfigure," or "disable," or "do grievous bodily harm" to) B. 
 
 CAUSING EXPLOSION, WITH INTENT TO INJURE. 
 
 (Section 280 (a) (*).) 
 
 At , on , A., with intent thereby to burn 
 
 (or " maim," or " disfigure," or " disable," or " do grievous bodily harm 
 to") B. (or "any person") unlawfully did cause a certain explosive sub- 
 stance, to wit, , to explode. 
 
 SENDING AN EXPLOSIVE SUBSTANCE WITH INTENT TO 
 
 INJURE. 
 
 (Section 280 (a) (U).) 
 
 At on , A., with intent thereby to burn 
 
 (or " maim," or " disfigure," or " disable," or " do grievous bodily harm 
 to") B., unlawfully did send (or "deliver") to (or "cause to be taken 
 into the possession of" or "to be received by") the said B., a certain 
 explosive substance, to wit . 
 
 PLACING DESTRUCTIVE FLUIDS, ETC., WITH INTENT 
 TO INJURE. 
 
 (Section 280 (a) (Hi).) 
 At 
 
 A., with intent thereby to burn 
 
 THROWING EXPLOSIVE SUBSTANCE WITH INTENT TO INJURE. 
 
 (Section 280 (6).) 
 
 At on , A., with intent thereby to do bodily in- 
 
 jury to B., unlawfully did cast and throw at and upon a certain building 
 (ship or vessel) to wit , a certain explosive substance, to wit 
 
 [describe the substance used}. 
 
 SETTING SPRING-GUNS, ETC. 
 
 (Section 281.) 
 
 On at , A., did set and place (or " cause to be 
 
 set and placed") in a certain [describe where set] a certain spring-gun (or
 
 636 MANNER OF STATING OFFENCES. 
 
 "man-trap"), calculated to destroy human life (or "inflict grievous bodily 
 harm "), with intent that the same (or " whereby the same ") might destroy 
 (or "inflict grievous bodily harm upon") any trespasser, or other person 
 coming in contact therewith. 
 
 INTENTIONALLY ENDANGERING RAILWAY PASSENGERS. 
 (Section 282 (6).) 
 
 On at , A., with intent to injure or endanger the 
 
 safety of persons on the Canadian Pacific Railway, unlawfully did an act 
 calculated to interfere with an engine, a tender, and certain carriages on 
 the railway on at by (describe icith so much detail as is 
 
 sufficient to give the accused reasonable information as to the acts or omis- 
 sions relied on against him, and to identify the transaction.) 
 
 OR, 
 
 (Section 282 (a) (i).) 
 
 On at , A., upon and across a certain railway 
 
 there called , a certain piece of wood (or "stone," etc.), unlawfully 
 
 did put (or "throw"), with intent thereby to injure or endanger the safety 
 of persons travelling, (or " befng ") upon the said railway. 
 
 OR, 
 
 (Section 282 (a) (it).) 
 
 On at , A., from a certain railway, there 
 
 called , a certain rail (or "railway switch," etc.), there being 
 
 upon and belonging to such railway, unlawfully did take up (or " remove." 
 or "displace' 1 ), with intent thereby to injure or endanger the safety of 
 persons travelling (or "being") upon the said railway. 
 
 OR, 
 
 (Section 282 (a) ().) 
 
 On at , A., a certain point (or other 
 
 machinery) then being upon and belonging to a certain railway called 
 
 , unlawfully did turn Cor " move?' or "divert"), with intent 
 
 thereby to injure or endanger the safety of persons travelling (or "being") 
 
 upon the said railway. 
 
 OR, 
 
 (Section 282 (a) (iv).) 
 
 On at , A., unlawfully did make (or "show." or 
 
 "hide," or "remove"), a certain signal (or "light") upon (or "near to") 
 a certain railway called , with intent, thereby, to injure or 
 
 endanger the safety of persons travelling (or "being") upon the said 
 railway. 
 
 OR, 
 
 (Section 282 (6).) 
 
 On at , A., a certain piece of wood (or "stone." 
 
 etc.'), unlawfully did throw (or "cause to fall" or "strike") at (or 
 "against," or "into," or "upon") a certain engine, (or "tender," or "car- 
 riage," or "truck"), then being used and in motion upon a certain railway 
 there called , with intent, thereby, to injure or endanger the 
 
 safety of B., then and there being upon the said engine (or "tender" or 
 " carriage," or " truck " or " engine," etc.. of the train of which the said 
 first mentioned engine, etc., then formed part).
 
 MANNER OF STATING OFFENCES. . 637 
 
 NEGLIGENTLY ENDANGERING THE SAFETY OF RAILWAY 
 
 PASSENGERS. 
 (Section 283.) 
 
 On at , A., by wilfully omitting and 
 neglecting to do his duty, that is to say, by wilfully omitting and neglecting 
 to (set out the particular act omitted to "be done) which it was then the duty 
 of him the said A. to do, did endanger (or "cause to be endangered") the 
 safety of persons then conveyed (or "being"), in and upon a certain rail- 
 way there called . 
 
 DOING INJURY BY FURIOUS DRIVING. 
 
 (Section 285.) 
 
 On at , A., being in charge of a certain 
 
 vehicle, to wit, a motor vehicle, did then and there by his wanton or fur- 
 ious driving of (or "racing" with) the said vehicle do (or "cause to be 
 done ") bodily harm to B. 
 
 PREVENTING THE SAVING OF A SHIPWRECKED PERSON. 
 
 (Section 286.) 
 
 On at , A. did prevent and impede 
 
 (or "endeavour to prevent and impede") B., a shipwrecked person, in his 
 endeavour to save his life. 
 
 COMMON ASSAULT. 
 (Section 291.) 
 
 On at , A. assaulted (or assaulted and 
 
 beat) B. 
 
 INDECENT ASSAULT ON A FEMALE. 
 (Section 292.) 
 
 On at , A. indecently did assault B., a female. 
 
 INDECENT ASSAULT ON A MALE. 
 (Section 293.) 
 
 On at , A., a male person, 
 
 indecently did assault B., another male person. 
 
 ASSAULT CAUSING ACTUAL BODILY HARM. 
 (Section 295.) 
 
 On at . A. did make an assault upon and 
 
 beat and occasion actual bodily harm to B. 
 
 AGGRAVATED ASSAULT. 
 (Section 296 (a).) 
 
 On at A., in and upon 
 
 B. did make an assault with intent then and there to commit an indict- 
 able offence, namely, [describe tlic indictable offence intended.']
 
 638 MANNEK OF STATING OFFENCES. 
 
 OR, 
 
 (Section 296 (6).) 
 
 On at , A. did assault B., a public officer 
 
 (or "a peace officer") then and there engaged in the execution of his duty. 
 
 OR, 
 
 (Section 296 (c).) 
 
 On at , A. did assault B., with intent 
 
 then and there to resist ( or " prevent " ) the lawful apprehension ( or 
 "detainer") of him the said A., (or "one C.") for a certain offence, to 
 wit, [state the offence.'] 
 
 OR, 
 
 (Section 296 (d).) 
 
 On at , A. did assault B., who was then and 
 
 there, in his quality of a duly appointed bailiff of , engaged in 
 
 the lawful execution of a certain process against (or " in the making of a 
 lawful seizure of") lands (or "goods"). 
 
 OR, 
 
 (Section 296 (e).) 
 
 At on , the day whereon a poll for the 
 
 election of municipal councillors, for the municipality of was 
 
 being proceeded with, A., being then and there within two miles from the 
 place where such poll was being held, did unlawfully make an assault upon 
 and beat B. 
 
 KIDNAPPING. 
 
 (Section 297.) 
 
 On at , A., without lawftil authority, did 
 
 kidnap B., with intent to cause the said B. to be secretly confined or 
 imprisoned in Canada, (or "to be unlawfully sent out of Canada," or "to 
 be sold or captured as a slave, or in any way held to service " ) , against 
 his will. 
 
 UNLAWFUL IMPRISONMENT. 
 (Section 297.) 
 
 On , at , A., without lawful authority, forcibly 
 
 seized (or "confined" or "imprisoned") B., within Canada. 
 
 RAPE. 
 
 (Section 298.) 
 
 On at , A. did assault B., a woman, who 
 
 was not his wife, and did then and there have carnal knowledge of her 
 without her consent. 
 
 ATTEMPT TO COMMIT RAPE. 
 
 (Section 300.) 
 
 On at , A. did assault B.. a woman, 
 
 who was not his wife, with intent then and there to have carnal knowledge 
 of her the said B., without her consent. 
 
 CARNALLY KNOWING A GIRL UNDER FOURTEEN. 
 (Section 301.) 
 
 On at , A. did have carnal knowledge of B., 
 
 a girl under the age of fourteen years, not being his wife.
 
 MANNER OF STATING OFFENCES. 639 
 
 ATTEMPT TO CARNALLY KNOW A GIRL UNDER FOURTEEN. 
 (Section 302.) 
 
 On at , -A. did attempt to have unlawful carnal 
 
 knowledge of B., a girl under the age of fourteen years, not being his wife. 
 
 ABORTION. 
 (Section 303.) 
 
 On at , A., with intent thereby to 
 
 procure the miscarriage of a certain woman to wit, one B., did unlawfully 
 administer to (or "cause to be taken by") her the said B., a certain drug 
 (or "a certain noxious thing") to wit [describe the drug or noxious thing 
 used, and mention the quantity.'] 
 
 OR, 
 
 On at , A., with intent thereby to procure 
 
 the miscarriage of a certain woman, to wit, one B., did unlawfully use upon 
 the person of the said B., a certain instrument to wit [describe the instru- 
 ment used.'] 
 
 OR, 
 
 (Section 304.) 
 
 On at , A., a woman, did, with intent 
 
 thereby to procure her own miscarriage, unlawfully administer (or "per- 
 mit to be administered") to herself a certain drug (or " a certain noxious 
 thing") to wit [describe the drug or noxious thing, and mention the quan- 
 tity used.] 
 
 OR, 
 
 (Section 305.) 
 
 On at , A., unlawfully did supply 
 
 (or "procure") a certain drug (or "a certain noxious thing") to wit, 
 [describe and mention the quantity of it] he the said A., then knowing that 
 the same was intended to be unlawfully used or employed with intent to 
 procure the miscarriage of a certain woman, to wit, one B. 
 
 OR, 
 
 (Section 305.) 
 
 On at , A., unlawfully did 
 
 supply (or "procure") a certain instrument, to wit, [describe the instru- 
 ment], he the said A., then knowing that the same was intended to be 
 unlawfully used or employed with intent to procure the miscarriage of a 
 certain woman, to wit, one B. 
 
 OFFENCES AGAINST CONJUGAL RIGHTS. 
 BIGAMY. 
 
 (Section 307.) 
 
 On at , A., being already theretofore 
 
 married to one B., did marry and go through a form of marriage with 
 another woman (or "man"), to wit. C.. and, to her (or "him") the said 
 C. was then and there married, the said B.. his the said A.'s said first wife 
 (or her, the said A.'s. said first husband") being still alive.
 
 640 MANNER OF STATING OFFENCES. 
 
 PROCURING A FEIGNED MARRIAGE. 
 (Section 309.) 
 
 At on , A., did procure a feigned and pretended 
 
 marriage between himself, the said A., and a certain woman, to wit, B. 
 
 OR, 
 
 At on , A., did knowingly aid and assist 
 
 B., in procuring a feigned and pretended marriage between him, the said 
 B., and a certain woman, to wit, C. 
 
 POLYGAMY. 
 (Section 310.) 
 
 At on , and on and at divers other 
 
 days and times before and since that date, A., a male person, and B., C. 
 and D., three females, did practice (or "agree and consent to practice") 
 polygamy together. 
 
 OR, 
 
 At on , A., male person, and B., C. and 
 
 D., three females, did agree to enter into a conjugal union (or " spiritual or 
 plural marriage," etc.) together, by means of a contract (or "the rites" or 
 "rules," etc.) "of a certain denomination," (or "sect" or "society" called 
 Mormons), (or "called," etc.). 
 
 SOLEMNIZING MARRIAGE WITHOUT AUTHORITY. 
 (Section 311.) 
 
 On at , A., without lawful authority, did 
 
 solemnize (or "pretend to solemnize") a marriage between B. and C. 
 
 OR, 
 
 On at , A., then knowing that B. was not 
 
 lawfully authorized to solemnize a marriage between C. and D., did pro- 
 cure the said B. to solemnize a marriage between the said C. and D. 
 
 SOLEMNIZING A MARRIAGE CONTRARY TO LAW. 
 
 (Section 312.) 
 
 At on , A., a clergyman of , 
 
 having lawful authority to solemnize marriages, did, then and there, 
 knowingly and wilfully solemnize a marriage between B. and C., in 
 violation of the laws of the Province of , in which the said 
 
 marriage was so solemnized, to wit, by solemnizing the same without any 
 previous publication of banns, and without any license in that behalf, or, 
 [set out the particular violation complained of.] 
 
 ABDUCTION. 
 
 (Section 313.) 
 
 On at , A., did take away (or "detain") 
 
 against her will, a certain woman, to wit, B., with intent to marry (or 
 " carnally know ") the said B.
 
 MANNER OF STATING OFFENCES. 641 
 
 OR, 
 
 On at , A., did take away (or "detain") 
 
 against her will, a certain woman, to wit, B., with intent to cause her, 
 the said B., to be married to (or " carnally known by ") C. 
 
 ABDUCTION OF AN HEIRESS OF ANY AGE. 
 (Section 314.) 
 
 On at , A., from motives of lucre, did 
 
 take away (or "detain," or "take away and detain") against her will, a 
 certain woman, to wit, B., such woman having a certain legal (or "equit- 
 able) present, (or "future" or "absolute" or "conditional" or "contin- 
 gent") interest in certain real (or "personal") estate, to wit (describe 
 the estate or property , [or such woman being a presumptive 
 heiress or co-heiress or presumptive next of kin to C., who has a legal 
 (or, etc.). interest in (etc.)], with intent to marry (or "carnally know") 
 the said B., (or with iritent to cause her, the said B., to be married to, 
 or "carnally known by") D. 
 
 ALLUREMENT OR ABDUCTION OF AN HEIRESS UNDER 
 
 TWENTY-ONE. 
 (Section 314.) 
 
 On at , A., with intent to marry (or 
 
 "carnally know") a certain woman, to wit, B., then being under the age 
 of twenty-one years, and having a certain legal (or etc.), interest in (etc.), 
 [follow the above form as to the woman's quality of heiress], did fraudu- 
 lently allure (or "take away" or "detain") the said B., out of the 
 possession and against the will of C., her father, (or "mother," etc.). 
 
 ABDUCTION OF A GIRL UNDER SIXTEEN. 
 (Section 315.) 
 
 On at , A. unlawfully did take (or 
 
 "cause to be taken") a certain unmarried girl, to wit, B., then under 
 the age of sixteen years, out of the possession and against the will of C., 
 her father, (or "mother" or "a person having the lawful care and charge 
 of her the said B."). 
 
 ABDUCTING CHILDREN UNDER FOURTEEN. 
 (Section 316.) 
 
 On at . A. unlawfully did take (or 
 
 "entice") away (or "detain,") one B., a child under the age of fourteen 
 years, to wit, of the age of years, with intent thereby then and 
 
 there to deprive C., the father (or "mother," or "guardian." etc.), of the 
 said B., of the possession of the said B., (or " with intent thereby, then and 
 there, to steal a certain article (or "certain articles), to wit, (mention 
 the article or articles) then being on or about the person of the said B. 
 
 OR, 
 
 (Section 316.) 
 
 On at A., unlawfully did receive (or 
 
 "harbour") one B., a child under the age of fourteen years, to wit, of the 
 age of years, then and there knowing the said B. to have 
 
 been then and there, and theretofore, taken (or "enticed") away, with 
 intent to deprive C., the father (or "mother" or "guardian," etc.) of the 
 said B., of the possession of the said B. 
 
 EXTORTION BY DEFAMATORY LIBEL. 
 (Section 332.) 
 
 On at , A. did publish (or "threaten to- 
 
 publish," or "offer to abstain from or prevent the publishing of") a de- 
 famatory libel of and concerning B., with intent thereby, then and there, 
 
 C.C.P. 41
 
 642 MANNER OF STATING OFFENCES. 
 
 to induce the said B., (or "one C."), to confer upon, (or "procure for") 
 the said A., (or "one D.) a certain appointment (or "office") of profit 
 (or "trust"), to wit, [mention the appointment or office in question]. 
 
 OR, 
 
 (Section 332.) 
 
 On at , A. did publish (or " threaten 
 
 to publish") a defamatory libel of and concerning B., in consequence of 
 the said A. having been refused money theretofore demanded by him the 
 said A. of and from the said B. (or "in consequence of the said A. having 
 been refused a certain appointment, etc., theretofore sought by him the 
 said A., of or from or at the hands or by the influence of the said B."). 
 
 PUBLISHING A LIBEL KNOWING IT TO BE FALSE. 
 
 (Section 333.) 
 
 On at , A. did publish in a certain 
 
 newspaper called the a defamatory libel, on, of and con- 
 
 cerning B.. he the said A. well knowing the same to be false, which libel 
 was contained in the said newspaper in an article therein headed (or 
 "commencing with") the following words, to wit, [set out the headinff, or 
 the commencing, and, if necessary, the concluding words of the libel or 
 otherwise give so much detail as is sufficient to furnish the accused with 
 reasonable information as to the part of the publication to be relied on 
 against him], and which libel was written in the sense of imputing that 
 the said B. was [as the case may be], and which libel was published with- 
 out legal justification or excuse, and was likely to injure and did injure 
 the reputation of the said B., by exposing him to hatred, (or " contempt," 
 or " ridicule "). 
 
 PUBLISHING A LIBEL. 
 (Section 334.) 
 
 On at , A., did publish on, and of 
 
 and concerning B., a defamatory libel in a certain letter directed to C., 
 which libel was in the words following that is to say, [set out the part of 
 the letter complained of as libellous], and which libel was written in the 
 sense of imputing that the said B. was [as the case may be], and was 
 designed to insult the said B. 
 
 Special Pleadings in Libel Cases. 
 
 SPECIAL PLEA. 
 (Section 331.) 
 
 And, without waiver of his plea of not guilty, the said A., for a further 
 plea in this behalf, says that Our Lord the King ought not further to 
 prosecute the said indictment against him because he says it is true that 
 [and so on, stating facts showing the truth of every matter charged in the 
 alleged libel] ; and so the said A. says that the said alleged libel is true in 
 substance and in fact. And the said A., further says that the said alleged 
 libel was and is matter of public interest and concern and that, beforo and 
 at the time of publishing the said alleged libel, it was for the public benefit 
 that the matters contained therein should be published, to the extent that 
 the same were published by him the said A., because [set out the facts 
 showing that the publication was for the public benefit]. And this he the 
 said A. is ready to verify, etc. 
 
 REPLICATION. 
 
 And as to the second plea of the said A., the said .T. N. (the clerk of 
 the Crown) who prosecutes for Our said Lord the King in this behalf, says 
 that Our said Lord the King ought not. by reason of anything in tho said 
 second plea alleged, to be barred or precluded from prosecuting the said in- 
 dictment against the said A., because the said J. N. says that he denies the
 
 MANNER OF STATING OFFENCES. 643 
 
 said several matters in the said second plea alleged, and says that the same 
 are not, nor are, nor is any or either of them, true, etc. And this he the 
 said J. N. prays may be enquired of by the country, etc. 
 
 PART VII. OF THE CODE. 
 
 STATEMENTS OF OFFENCES AGAINST RIGHTS OF PROPERTY, OFFENCES 
 CONNECTED WITH TRADE. ETC. 
 
 KILLING AN ANIMAL WITH INTENT TO STEAL THE 
 
 CARCASE, Etc. 
 (Section 350.) 
 
 At on , A. did kill one sheep, belong- 
 
 ing to B., with intent to steal the carcase (or "a part of the carcase, to 
 wit, the inward fat") of the said sheep. 
 
 FRAUDULENT CONVERSION BY A PERSON ENTRUSTED WITH 
 
 MONEY. 
 
 (Section 355.) 
 
 At on , A., having theretofore received 
 
 from B. the sum of one hundred dollars, on terms requiring him, the said 
 A., to pay over the same to C., did fraudulently convert to his own use 
 and thereby steal the said sum of money. 
 
 THEFT BY HOLDER OF POWER OF ATTORNEY. 
 
 (Section 356.) 
 
 At on , A., having been theretofore 
 
 entrusted by B. with a power of attorney for the sale of a certain lot of 
 land and the buildings thereon, to wit, (describe the property), did sell 
 the same fraudulently, to wit, for a sum of money which was $500 less than 
 the value thereof under a fraudulent arrangement for the division of the 
 said surplus value of $500 between the said A. and one C. 
 
 OR, 
 
 (Section 356.) 
 
 At on , A., having been theretofore 
 
 entrusted by B. with a power of attorney for the sale of a certain lot of 
 land and the buildings thereon, to wit, (describe the property), and having 
 theretofore sold the said land and buildings, did, then and there, fraudu- 
 lently convert the proceeds of the said sale, to wit, the sum of two thou- 
 sand dollars, to a purpose other than that for which he was entrusted with 
 the said power of attorney, by then and there applying and converting the 
 said money to his own use. 
 
 THEFT BY MISAPPROPRIATING MONEY HELD UNDER 
 DIRECTION. 
 
 (Section 357.) 
 
 At on , A., having theretofore received 
 
 from B. the sum of one hundred dollars, with a direction from him the 
 said B., to the said A., that the said money should be paid to C., did, then 
 and there, in violation of good faith and contrary to the terms of the said 
 direction, fraudulently convert to his own use and thereby steal the said 
 sum of money.
 
 644 MANNEE OF STATING OFFENCES. 
 
 THEFT BY A PARTNER. 
 
 (Section 352.) 
 
 At on , A. stole one car load of coals 
 
 of the value of the property of a co-partnership composed 
 
 of the said A. and one B. 
 
 THEFT BY A CLERK OR SERVANT. 
 
 (Section 359.) 
 
 At on , A., being then and there a 
 
 clerk, (or "employed for the purpose and in the capacity of a clerk") to 
 B. his master, (or "employer"), did steal certain money, to the amount 
 of one hundred dollars, certain goods, to wit, one gold watch and one gold 
 chain, and a certain valuable security, to wit, one promissory note for the 
 payment of twenty dollars, of and belonging to (or "in the possession of") 
 the said B., his master, (or "employer"). 
 
 THEFT BY A BANK OFFICIAL. 
 
 (Section 359 (ft).) 
 
 At on , A., being then and there a cashier 
 
 (or "assistant cashier," or "manager" or "clerk," etc.), of the 
 bank, (or "savings bank"), did steal certain money to the amount of 
 five thousand dollars, (or "bonds," or "obligations." etc.), [describe them], 
 of and belonging to, (or "lodged," or "deposited" in) the said bank, (or 
 " savings bank "). 
 
 THEFT BY GOVERNMENT EMPLOYEE. 
 
 (Section 359 (c).) 
 
 At on , A., being then and there 
 
 employed in the service of His Majesty (or "the Government of Canada," 
 or " the Government of the Province of Ontario." or " Quebec," or " the 
 municipality of "), and being, then and there, by virtue 
 
 of his said employment, in possession of certain moneys to the amount of 
 ten thousand dollars, (or certain valuable securities, to wit"), [describe 
 them], did unlawfully steal the said moneys, (or " the said valuable 
 securities.") 
 
 GOVERNMENT EMPLOYEES REFUSING TO DELIVER UP 
 
 BOOKS, ETC. 
 (Section 391.) 
 
 At on , A., being then and there em- 
 
 ployed in the service of His Majesty (or "the Government of Canada," or 
 " the Government of the Province of Ontario," or " Quebec," or " the muni- 
 cipality of "), and being then and there entrusted, by 
 virtue of his employment, with the keeping (or "receipt," or "custody," 
 or "management," or "control") of certain monies to the amount of ten 
 thousand dollars, (or " certain chattels, to wit," describe them], or " certain 
 valuable securities, to wit," [describe them] or certain books, papers, ac- 
 counts and documents, to wit") [describe them , did refuse (or "fail") to 
 deliver up the same, to B., who was, then and there, duly authorized to 
 demand them. 
 
 THEFT BY TENANT. 
 (Section 360.) 
 
 At on , A., being then and 
 
 there a tenant (or "lodger") of or in a certain house (or "lodging"), to 
 wit, [describe the premises], did steal a certain chattel, (or "fixture"), to 
 wit, [describe the chattel or fixture], belonging to B., and let to be used by 
 him the said A., in or with the said house, (or "lodging").
 
 MANNER OF STATING OFFENCES. 64o 
 
 THEFT OF A WILL. 
 (Section 361.) 
 
 At on , A. did steal a certain 
 
 testamentary instrument, to wit, the last will and testament (or " a codicil 
 to the last will and testament") of B. 
 
 THEFT OF A DOCUMENT OF TITLE. 
 
 (Section 362.) 
 
 At on , A. did steal a certain 
 
 document of title to goods, to wit, one bill of lading, [describe the document 
 and the goods to which it relates], (or " one dock warrant," or " warehouse 
 keeper's receipt," etc.), the property of B. 
 
 OR, 
 (Section 362.) 
 
 At on , A. did steal a certain 
 
 document of title to lands, to wit, one deed, (or "map," or "paper," etc.), 
 containing evidence of the title, (or "a part of the title") of B. to cer- 
 tain real property, to wit, [describe the property], belonging to the said B. 
 (or "in which the said B. has an interest"). 
 
 THEFT OF JUDICIAL DOCUMENTS, ETC. 
 
 (Section 363.) 
 
 At on , A. did steal a certain 
 
 record (describing it) of and belonging to the Superior Court of Lower 
 Canada for the district of Montreal in a certain cause, [describe the cause, 
 matter or proceeding] then (or "theretofore"), depending in the said 
 Court. 
 
 OR, 
 
 (Section 363.) 
 
 At on , A. did steal a certain 
 
 writ, (or "petition," etc.), forming part of a certain record of and belong- 
 ing to the Superior Court of Lower Canada, for the district of Montreal, 
 in a certain cause [describe the cause, matter or proceeding], then (or 
 "theretofore") depending in the said Court. 
 
 STEALING A POST-LETTER BAG. 
 
 (Section 364 (a).) 
 
 At on , A. did steal one 
 
 post-letter bag, the property of the Post-Master General. 
 
 STEALING A POST-LETTER FROM A POST-LETTER BAG, ETC. 
 
 (Section 364 (&).) 
 
 At on , A. did steal one 
 
 post-letter, the property of the .Post-Master General, from a post-letter bag, 
 (or "from a post-office" or "from an officer employed in the post-office of 
 Canada "). 
 
 STEALING A POST-LETTER WITH MONEY IN IT. 
 
 (Section 364 (c).) 
 
 At on . A. did steal one 
 
 post-letter, the property of the Post-Master General, which post-letter con- 
 tained a certain chattel, to wit. [describe it], (or "certain money to the 
 amount of ," or "a certain valuable security, to wit"), 
 
 [describe it].
 
 646 MANNER OF STATING OFFENCES. 
 
 STEALING MONEY, ETC., OUT OF A POST-LETTER. 
 
 (Section 364 (d).) 
 
 At on , A. did steal a certain 
 
 chattel, to wit, [describe it], (or " certain money to the amount of 
 
 " or " a certain valuable security, to wit"), [describe 
 it], from and out of a post-letter, the property of the Post-Master General. 
 
 STEALING A POST-LETTER, ETC. 
 
 (Section 365 (a).) 
 
 At on . A. did steal one 
 
 post-letter, the property of the Post-Master General. 
 
 STEALING CATTLE. 
 (Section 369.) 
 
 At on . A. did steal one 
 
 horse, the property of B. 
 
 STEALING OYSTERS. 
 (Section 371.) 
 
 At on , A. did steal from a 
 
 certain oyster-bed, called .' , the property of B., one 
 
 hundred oysters. 
 
 DREDGING FOR OYSTERS. 
 (Section 371.) 
 
 At on , A., within the limits 
 
 of a certain oyster-bed, called , the property of B., and 
 
 sufficiently marked out and known as the property of the said B., unlaw- 
 fully and wilfully did use a certain dredge (or "net." or "instrument." or 
 "engine"), for the purpose of then and there taking oysters, (or "oyster- 
 brood " ) . 
 
 DRAGGING ON THE GROUND OF AN OYSTER FISHERY. 
 
 (Section 371.) 
 
 At on , A. unlawfully and 
 
 wilfully did drag, with a certain net. (or "instrument" or "engine"), 
 upon the ground of a certain oyster fishery called , the 
 
 property of B., and sufficiently marked out and known as the property of 
 the said B. 
 
 STEALING THINGS FIXED TO BUILDINGS. 
 
 (Section 372.) 
 
 At on , A. did steal sixty pounds 
 
 weight of lead, the property of B.. then being fixed in a certain dwelling- 
 house belonging to the said B., and situated in aforesaid. 
 
 STEALING TREES WORTH $25 OR MORE. 
 
 (Section 373.) 
 
 At on , A. did steal one 
 
 ash tree of the value of twenty-six dollars, the property of B., then growing 
 in a certain field belonging to the said B., and situated in aforesaid. 
 
 STEALING A TREE (WORTH $5). IN A PARK, ETC. 
 
 f Section 373). 
 
 At on , A. did steal one 
 
 apple tree, of the value of six dollars, the property of B.. growing in a 
 
 certain orchard of the said B., situated at aforesaid.
 
 MANNER OF STATING OFFENCES. 647 
 
 STEALING TREES AFTER TWO PREVIOUS CONVICTIONS. 
 
 (Section 374.) 
 
 At on , A. did steal one 
 
 shrub of the value of fifty cents, the property of B., then growing in a 
 certain plot of land situate and being in aforesaid ; and 
 
 the said jurors say that, heretofore, to wit, at on 
 
 , (before the committing of the hereinbefore mentioned offence), 
 the said A. was duly convicted, before C., one of His Majesty's justices of 
 the peace for the district of of 
 
 having at on , [set out the offence forming 
 
 the basis of the first conviction], and was adjudged, for his said offence, to 
 pay, [etc.], and, in default of payment, [etc.], to be imprisoned, [etc.]. And 
 the said jurors further say that heretofore, to wit, at on 
 
 , (before the committing of the firstly herein- 
 before mentioned offence, but after the next hereinbefore mentioned con- 
 viction), the said A. was again duly convicted before D., one of His 
 Majesty's justices of the peace for the district of of 
 
 having at on , [set out the second con- 
 
 viction]. And so the jurors aforesaid say that, on the day and year first 
 aforesaid, the said A. did steal the said shrub of the value of fifty cents, 
 after having been twice convicted of the offence of stealing a shrub, (or 
 "tree," [etc.], of the value of at least twenty-five ceents. 
 
 STEALING FRUIT, ETC., GROWING IN A GARDEN, ETC., AFTER 
 
 A PREVIOUS CONVICTION. 
 
 (Section 375.) 
 
 At on A. did steal 
 
 forty pounds weight of pears, the property of B., then growing in a certain 
 orchard of the said B., situated in aforesaid ; And the said 
 
 jurors say that, heretofore, to wit, at on 
 
 (before the committing of the hereinbefore mentioned > offence), the 
 said A. was duly convicted before C., one of His Majesty's justices of the 
 peace for the district of of having at 
 
 on , [set out tlie offence forminff the basis of the first 
 
 conviction"], and was adjudged, for his said offence, to pay. [etc], and in 
 default of payment, [etc.], to be imprisoned, [etc.]. And so the jurors afore- 
 said say that, on the day and year first aforesaid, A. did steal the said forty 
 pounds weight of pears, after having been previously convicted of the offence 
 of stealing fruit in an orchard (or " garden "), [etc.]. 
 
 STEALING FROM A SHIP. 
 
 (Section 386.) 
 
 A. stole a sack of flour from a ship called the , 
 
 at on 
 
 STEALING METAL ORE, ETC., FROM A MINE. 
 (Section 378.) 
 
 At on A. did steal 
 
 five tons weight of iron ore, (or "coal"), the property of B., from a certain 
 iron (or "coal") mine of the said B., situated in aforesaid. 
 
 STEALING FROM THE PERSON. 
 
 (Section 379). 
 
 At on A. did steal 
 
 one gold watch and one silver watch chain from the person of B. 
 
 STEALING IN A DWELLING HOUSE. 
 
 (Section 380 (a).) 
 
 At on A. did steal 
 
 twelve silver spoons, of the total value of twenty-five dollars, of the goods 
 and chattels of B.. in the dwelling house of the said B., situated in 
 aforesaid.
 
 648 MANNER OF STATING OFFENCES. 
 
 OR, 
 
 (Section 380 (6).) 
 
 At on A. did steal 
 
 twelve silver forks of the goods and chattels of B., in a dwelling house of 
 the said B., situated in , aforesaid ; there being, then and there, 
 
 in the said dwelling house, one C., who was then and there put in bodily 
 fear by the menaces and threats of the said A. 
 
 STEALING BY PICKLOCKS. 
 
 (Section 381.) 
 
 At on , A., by means of a pick- 
 
 lock, (or "false key," etc.), did steal the sum of twenty-five dollars, the 
 property of B., from a locked and secured receptacle for property. 
 
 STEALING IN A SHIP ON A NAVIGABLE RIVER. 
 
 (Section 382 (a).) 
 
 At on A. did steal 
 
 from a certain ship called " Nepiffon " twelve bars of iron of the goods and 
 merchandise of B., then being in the said ship, upon the navigable river 
 St. Lawrence, (or "in a certain port of discharge, to wit, the port of 
 Montreal "). 
 
 STEALING FROM A DOCK. 
 
 (Section 382 (6).) 
 
 At on , A. did steal, 
 
 from a certain dock, (or "wharf"), adjacent to the navigable river St. 
 Lawrence, one sack of flour of the goods and merchandise of B., then being 
 upon the said dock. 
 
 STEALING WRECK. 
 (Section 383.) 
 
 At on A. did steal 
 
 one coil of rope, and one compass, being portions of the tackle 01 a certain 
 ship called the " Hawk" the property of B., and other persons to the jurors 
 unknown, which ship was then and there lying stranded and wrecked. 
 
 OR, 
 
 (Section 383.) 
 
 At on A. did steal 
 
 a gold watch, the property of B., a shipwrecked person belonging to a 
 certain ship, called the " Highflyer," which then and there lay stranded and 
 wrecked. 
 
 STEALING IN OR FROM RAILWAY STATIONS, ETC. 
 
 (Section 384.) 
 
 At on A. did steal 
 
 one umbrella and one rug of the goods and chattels of B., in (or " from "), 
 a certain railway station, to wit, a station belonging to the Grand Trunk 
 Railway Company (or "the Canadian Pacific Railway Company"), and 
 situated at aforesaid. 
 
 STEALING GOODS IN PROCESS OF MANUFACTURE. 
 
 (Section 388.) 
 
 At on A. did steal 
 
 forty yards of calico worth five dollars, belonging to B.. in a certain weav- 
 ing shed of the said B., situated in aforesaid, whilst the same 
 were there exposed upon the looms of the said B., during a certain stage, 
 process or progress of the manufacture thereof.
 
 MANNER OF STATING OFFENCES. 649 
 
 FRAUDULENTLY DISPOSING OF THINGS ENTRUSTED FOR 
 MANUFACTURE. 
 
 (Section 389.) 
 
 At on , A. did fraudulently dispose 
 
 of one hundred yards of tweed cloth, the property of B., which the said A. 
 had been heretofore entrusted with to manufacture. 
 
 CRIMINAL BREACH OF TRUST. 
 (Section 390.) 
 
 At on , A., then being, under 
 
 and by virtue of the will of B., a trustee of certain property, to wit, 
 [describe it], for the use and benefit of C., D., E. and F., did with intent 
 to defraud, and in violation of his trust, convert the same to a use not 
 authorized by the said trust, to wit . 
 
 FRAUD BY OFFICIAL. 
 
 (Section 413.) 
 
 At on , A., then being a director 
 
 (or "manager"), [etc.], of a certain body corporate called 
 did destroy (or "alter," or "mutilate," or "falsify"), a certain book (or 
 "paper," or "writing," or "valuable security"), to wit, [describe the 
 book, etc.], belonging to the said body corporate, with intent to defraud. 
 
 OR, 
 
 (Section 413.) 
 
 At on , A., then being a director 
 
 [etc.], of a certain body corporate called did. with intent 
 
 to defraud, make (or "concur in making") in a certain book of account 
 to wit. [describe it], of the said body corporate, a certain false entry, by 
 then and there falsely entering in such book, [describe the false entry]. 
 
 DESTROYING DOCUMENT OF TITLE TO GOODS. 
 
 (Section 396.) 
 
 At on , A., for a fraudulent 
 
 purpose, to wit did destroy (or " cancel," or " conceal," or 
 
 " obliterate ) , a certain document of title to goods, to wit, one bill of 
 lading, [describe it]. 
 
 FRAUDULENT CONCEALMENT, ETC. 
 (Section 397.) 
 
 At on , A., for a fraudulent 
 
 purpose, to wit did take (or "obtain," or "remove," or "con- 
 ceal"), one horse <and one express wagon, the property of B., of the value 
 of one hundred dollars. 
 
 BRINGING STOLEN PROPERTY INTO CANADA. 
 
 (Section 398.) 
 
 On at , A. did bring into Canada, to wit, 
 
 into the city of Montreal in the province of Quebec, twelve gold watches 
 and five diamond rings, of the total value of two thousand dollars, there- 
 tofore stolen by him the said A., outside of Canada, to wit, in the city of 
 New York in the State of New York, one of the United States of America. 
 
 RECEIVING PROPERTY STOLEN, OR OBTAINED BY ANY 
 
 INDICTABLE OFFENCE. 
 (Section 399.) 
 
 At on , A. did receive and 
 
 have one piano, belonging to B., and theretofore stolen (or "obtained by 
 an indictable offence, to wit, by false pretences"), or [describe the offence 
 by which the piano was obtained], he the said A., then well knowing tfie 
 said piano to have been so stolen (or "obtained by the said indictable 
 offence." )
 
 650 MANNER OF STATING OFFENCES. 
 
 OR, 
 
 (Section 400.) 
 
 At on , A. stole one piano 
 
 belonging to B. . And the jurors aforesaid do further 
 
 present, that, afterwards, at on 
 
 C., the said piano so stolen as aforesaid, did receive and have, he, the said 
 C., then well knowing the said piano to have been stolen. 
 
 OBTAINING BY FALSE PRETENCES. 
 (Section 405.) 
 
 At on , A., by false pre- 
 
 tences, did obtain from B. five barrels of flour of the value of 
 with intent to defraud. 
 
 OR, 
 (Section 405.) 
 
 A. obtained by false pretences from B., a horse, a cart and the harness 
 of a horse at on , with intent to defraud. 
 
 OBTAINING EXECUTION OF VALUABLE SECURITY BY FALSE 
 
 PRETENCES. 
 
 (Section 406.) 
 
 At on , A., by false pre- 
 
 tences, did cause and induce B. to execute (or "make," or "accept," or 
 "endorse," or "destroy"), a certain valuable security, to wit, a promissory 
 note for one hundred dollars, with intent thereby then and there to defraud 
 and injure the said B. 
 
 PERSONATION. 
 
 (Section 408.) 
 
 At on , A. did personate B. (or 
 
 " the administrator," or " widow," or " next of kin of the late C.," or " the 
 wife of D."J with intent then and there and thereby fraudulently to obtain, 
 [describe the money or property intended to be obtained]. 
 
 PERSONATION AT AN EXAMINATION. 
 (Section 409.) 
 
 At on , A., falsely and with 
 
 intent to gain an advantage for himself, (or " one B."), did personate C., a 
 candidate at a competitive (or "qualifying") examination held unde.r 
 
 authority of law, to wit (or "in connection with the McGili 
 
 College University, of Montreal.") 
 
 PERSONATING AN OWNER OF STOCK. 
 (Section 410.) 
 
 At on , A. falsely and deceitfully 
 
 did personate B., the owner of a certain share and interest in certain stock, 
 [annuity or public fund], to wit, [give the amount and description of the 
 said stock, etc.], then transferable at the 
 
 bank, and did, thereby, and by means of such personation, then and there 
 transfer (or "endeavour to transfer"), the said share and interest of the 
 said B., in the said stock, [etc.], as if the said A. were the lawful owner 
 thereof. 
 
 ACKNOWLEDGING AN INSTRUMENT IN A FALSE NAME. 
 
 (Section 411.) 
 
 At on , A. did, before ;the Court of 
 
 King's Bench for the Province of Quebec, sitting in and for the district of 
 Montreal, (or "the Honourable Mr. Justice .... "), [etc.], without lawful 
 authority or excuse, acknowledge in the name of B. a certain recogniz-ance 
 of bail, (or "cognovit actionem"), [etc.], to wit, [describe the instrument 
 and the cause, action, or proceeding to which it relates].
 
 MANNER OF STATING OFFENCES. 651 
 
 OBTAINING PASSAGE BY FALSE TICKET. 
 
 (Section 412.) 
 
 At on , A., fraudulently, 
 
 unlawfully, and by means of a false ticket, (or "order"), did obtain (or 
 " attempt to obtain ") a passage on a carriage or car of the Montreal 
 Street Railway Company. 
 
 FALSE STATEMENT BY A PROMOTER, DIRECTOR, PUBLIC 
 OFFICER OR MANAGER OF A PUBLIC COMPANY. 
 
 (Section 414.) 
 
 At on , A., being then a promoter (or 
 
 "director," or "public officer," or "manager"), of a certain body corporate 
 (or "public company") then intended to be formed and to be called 
 , (or "then actually existing and called "), did 
 
 make, circulate, and publish (or "concur in making, circulating, and pub- 
 lishing) a certain prospectus (or "account" or "statement"), well knowing 
 the same to be false in certain material particulars, to wit, [state them], 
 with intent to induce certain persons, to the jurors aforesaid unknown, to 
 become shareholders or partners (or "with intent to deceive and defraud 
 the members, shareholders and creditors"), of the said body corporate (or 
 " public company "). 
 
 FALSE ACCOUNTING BY CLERK. 
 
 (Section 415.) 
 
 At on , A., then being a clerk in the employ of 
 
 B., did, with intent to defraud, destroy (or "alter," or "mutilate," or 
 "falsify") a certain book (or "paper," or "writing," or "valuable se- 
 curity"), to wit, [describe the book, etc.], belonging to (or "in the pos- 
 session of," or "received by the said A., for and on behalf of") the said B. 
 
 FRAUDULENT ASSIGNMENT BY A DEBTOR. 
 
 (Section 417 (a) (i).) 
 
 At on , A., with intent to defraud his creditors, 
 
 did make (or "cause to be made") a gift, (or "conveyance," or "assign- 
 ment," or " sale," or " transfer," or " delivery "), of his property, to B. 
 
 OR, 
 
 (Section 417 (a) (ii).) 
 
 At on , A. did remove (or " conceal," or 
 "dispose of") some of his property, to wit , with intent to de- 
 fraud his creditors. 
 
 FRAUDULENTLY RECEIVING'A DEBTOR'S PROPERTY. 
 
 (Section 417 (o).) 
 
 At on , A., with intent that B. should defraud 
 
 his creditors, did receive the property of the said B., then and there given 
 (or " conveyed," or " assigned," or " sold," or " transferred," or " delivered," 
 or "removed." or "concealed," or "disposed of") by the said B.. with 
 intent to defraud his creditors. 
 
 GIVING A FALSE WAREHOUSE RECEIPT. 
 
 (Section 425.) 
 
 At on , A., then being the keeper of a ware- 
 
 house, [etc.], for storing timber, [etc.] knowingly, wilfully and with intent 
 to mislead (or "injure," or "defraud") did give to B. a certain writing 
 purporting to be a receipt for, (or "acknowledgment of"), certain goods, 
 to wit, [describe them], as having been received into his the said A.'s ware- 
 house, [etc.], before the said goods had been received by him the said A., 
 as aforesaid.
 
 652 MANNER OF STATING OFFENCES. 
 
 FALSE RECEIPT FOR GRAIN, ETC. 
 
 (Section 427.) 
 
 At on , A., in a certain receipt (or "certificate." 
 
 or "acknowledgment") for grain (or "timber," etc.), to be used for one 
 of the purposes of the Bank Act, to wit, for the purpose [mention the 
 purpose], wilfully did make a false statement, to wit, [set out the statement 
 and show in what respect it was false.] 
 
 UNLAWFULLY APPLYING MARKS TO PUBLIC STORES. 
 
 ('Section 433.) 
 
 At on , A., without lawful authority, did apply, 
 
 in and on certain public stores, to wit, fifty yards of canvas, and fifty yards 
 of fearnought, a certain mark, to wit, a blue line in a serpentine form. 
 
 OR, 
 (Section 433.) 
 
 At on , A., without lawful authority, did apply in 
 
 and on certain public stores, to wit, fifty yards of bunting, a certain mark, 
 to wit, a double tape, in the warp of the said bunting. 
 
 UNLAWFUL POSSESSION, ETC., OF PUBLIC STORES. 
 
 (Section 435.) 
 
 At on , A., without lawful authority, did 
 
 receive (or "possess," or "keep," or "sell," or "deliver"), certain public 
 stores, to wit, twenty-five pounds of candles, bearing a certain mark, to wit, 
 blue threads in each wick, to denote His Majesty's property therein know- 
 ing them to bear such mark. 
 
 RECEIVING REGIMENTAL NECESSARIES. 
 
 (Section 438.) 
 
 At on , A. did buy from a certain soldier, to 
 
 wit, B., certain arms (or "clothing") to wit [describe them], belonging to 
 His Majesty. 
 
 CHEATING AT PLAY, ETC. 
 
 (Section 442.) 
 
 At on , A., with intent to defraud B., did cheat 
 
 in playing at a game with cards (or "dice"). 
 
 CONSPIRACY TO DEFRAUD. 
 (Section 444.) 
 
 At on , A., B. and C. did conspire together 
 
 to defraud the public (or "D."), by deceit, (or "falsehood," or "by the 
 fraudulent means following"), to wit, \set out the fraudulent means agreed 
 upon]. 
 
 ROBBERY, WITH WOUNDING, ETC. 
 
 (Section 446 (a).) 
 
 At on , A., with and by means of violence (or 
 
 "threats of violence") then and there used by him to and against the 
 person (or "property") of B., to prevent (or "overcome") resistance, 
 did violently steal from the person (or "in the presence") of the said B., 
 and against the said B.'s will, one gold watch, of the goods and chattels 
 of the said B. ; and that at the time (or "immediately before," or "im- 
 mediately after") he so robbed the said B., as aforesaid, he the said A., 
 did wound (or "beat," or "strike." or "use personal violence to") the 
 said B.
 
 MANNER OF STATING OFFENCES. 653 
 
 ROBBERY BY A PERSON ACCOMPANIED BY OTHERS. 
 
 (Section 446 (6).) 
 
 At on , A., then being together with other 
 
 persons to the jurors aforesaid unknown, did with and by means of vio- 
 lence, (or " threats of violence ") then and there used by him to and against 
 the person (or "property") of B., to prevent (or "overcome") resistance, 
 violently steal from the person (or "in the presence") of the said B., 
 and against the said B.'s will, moneys of the said B. to the amounrt 6f 
 one hundred dollars, 
 
 s 
 
 ROBBERY BY A PERSON ARMED WITH AN OFFENSIVE 
 WEAPON. 
 
 (Section 446 (c) .) 
 
 At on , A., then being armed with a certain 
 
 offensive weapon, to wit, a brass knuckle-duster (or "lead-loaded cane," or 
 "sand-bag," or "pistol," or "kniie"), did, with and by means of violence, 
 (or "threats of violence"), then and there used by him to and against 
 the person (or "property") of B., to prevent (or "overcome") resistance, 
 violently steal from the person (or "in the presence") of the said B., and 
 against the said B.'s will, one diamond ring of the goods and chattels of 
 the said B. 
 
 ASSAULT BY AN ARMED PERSON, WITH INTENT TO ROB. 
 
 (Section 446 (c).) 
 
 At on , A., then being armed with a certain 
 
 offensive weapon, to wit, a heavy bludgeon, did, in and upon B., make an 
 assault, with intent the moneys, goods and chattels of the said B. then and 
 there violently to steal from the person and against the will of the said B. 
 
 ROBBERY. 
 
 (Section 447.) 
 
 At on , A., with and by means of violence (or 
 
 "threats of violence") then and there used by him to and against the 
 person (or "property") of B., to prevent (or "overcome") resistance, did 
 violently steal from the person (or "in the presence"), of the said B., 
 and against the said B.'s will, moneys of him the said B., amounting to 
 fifty dollars. 
 
 ASSAULT WITH INTENT TO ROB. 
 
 (Section 448.) 
 
 At on , A. assaulted B. with intent the 
 
 moneys, goods and chattels of the said B., then and there violently to steal 
 from the person and against the will of the said B. 
 
 STOPPING THE MAIL. 
 (Section 449.) 
 
 At on , A. did stop a certain mail, to wit, The 
 
 mail for the conveyance of letters between and 
 
 with intent to rob (or "search") the same. 
 
 COMPELLING EXECUTION OF A DOCUMENT BY FORCE. 
 
 (Section 450.) 
 
 At on , A., by means of unlawful violence to 
 
 (or "restraint of") the person of B., did unlawfully compel the said B. 
 to execute (or "sign" or "destroy") a certain deed, to wit, [describe it], 
 with intent to defraud, (or injure").
 
 654 MANNER OF STATING OFFENCES. 
 
 OR, 
 
 (Section 450.) 
 
 At on , A., by means of a threat that he 
 
 would employ unlawful violence to (or "restraint of") the person of B., 
 did unlawfully compel the said B. to sign (or " accept," or " endorse," or 
 "destroy," or "alter") a certain promissory note (or "bill of exchange") 
 to wit, [describe it], with intent to defraud (or " injure "). 
 
 SENDING THREATENING LETTER. 
 
 (Section 451.) 
 
 At on , A. did send to (or " cause to be 
 
 received by") B., a certain letter (or "writing") demanding of the said 
 B., with menaces, a certain sum of money, to wit, one thousand dollars, the 
 said demand being without reasonable or probable cause, and he the said 
 A. then well knowing the contents of the said letter (or "writing"), which 
 is as follows : [set out the letter.] 
 
 DEMANDING WITH INTENT TO STEAL. 
 (Section 452.) 
 
 At on , A., with menaces, did demand of B. 
 
 a certain sum of money, to wit, one hundred dollars, with intent then and 
 there to steal the same from the said B. 
 
 EXTORTION BY THREATS TO ACCUSE OF CERTAIN SERIOUS 
 
 CRIMES. 
 (Section 453 (a) ().) 
 
 At on , A. did accuse (or "threaten 
 
 to accuse") B., of having committed an offence punishable by law with 
 death (or "imprisonment for seven years or more") to wit, murder (or 
 "forgery," or "burglary," or "bigamy"), [etc.], with intent thereby then 
 and there to extort and gain money from the said B. 
 
 OR, 
 (Section 453 (a) (ii).) 
 
 At on . A. did accuse (or "threaten 
 
 to accuse") B., of having committed an assault with intent to commit a 
 rape, (or "attempted or endeavoured to commit a rape"), with intent 
 thereby then and there to extort and gain money from the said B. 
 
 OR, 
 
 (Section 453 (a) (it;).) 
 
 At on , A. did accuse (or " threaten 
 
 to accuse") B., of having committed an infamous offence, to wit, the 
 abominable crime of buggery, with intent thereby then and there to extort 
 and gain money from the said B. 
 
 OR, 
 
 (Section 453 (c).) 
 
 At on , A., with intent to extort 
 
 and gain money from B., did cause the said B., to receive a certain docu- 
 ment accusing ( or _" threatening to accuse") the said B., of having coun- 
 selled and procured one C., to commit an infamous offence, to wit, the 
 abominable crime of buggery, he the said A. then well knowing the contents 
 of the said document, which is as follows: [set out the document]. 
 
 EXTORTION BY THREATS TO ACCUSE OF OTHER CRIMES. 
 
 (Section 454.) 
 
 At on , A. did accuse (or " threaten 
 
 to accuse") B.. of having committed the offence of polygamy (or "libel" 
 or " aggravated , assault," or "gaming in stocks." or "frequenting bucket 
 shops." or " corrupting jurors." or " Obtaining money by false pretences," 
 or "defrauding creditors"), [etc.], with intent, thereby, then and there to 
 extort and gain money from the said B.
 
 MANNER OF STATING OFFENCES. 655 
 
 BREAKING A PLACE OF PUBLIC WORSHIP. 
 
 (Section 455.) 
 
 At on , A. did break and enter a 
 
 certain place of public worship, to wit, [describe the church, chapel, or 
 other place of public worship], and there, in the said church, (or "chapel") 
 [etc.], did steal one silver candlestick of the goods and chattels of 
 
 BURGLARY. 
 
 (Section 457 (a).) 
 
 At on , about the hour of twelve at 
 
 night, A., burglariously did break and enter the dwelling-house of B., there 
 situated, with intent burglariously to steal the goods and chattels of the 
 said B., then and there being found in the said dwelling-house, (or " with 
 intent to commit, in the said dwelling-house, an indictable offence, to wit"), 
 [describe the offence], 
 
 OR, 
 (Section 457 (a).) 
 
 At on , about the hour of twelve at 
 
 night, A. burglariously did break and enter the dwelling-house of B., there 
 situated, with intent burglariously to steal the goods and chattels of the 
 said B., then and there being found in the said dwelling-house ; and he the 
 said A., having so broken and entered and then being in the said dwelling- 
 house did burglariously steal twelve silver forks and twelve silver spoons 
 of the value of forty dollars, of the goods and chattels of the said B., in the 
 said dwelling-house then being found. 
 
 OR, 
 
 (Section 457 (6).) 
 
 At on , A., then being in the dwelling- 
 
 house of B., did steal twelve silver forks and twelve silver spoons of the 
 value of forty dollars of the goods and chattels of the said B. in the said 
 dwelling-house, and the said A., being so as aforesaid in the said dwelling- 
 house and having committed the theft aforesaid, did afterwards, to wit, on 
 the day and year aforesaid, about the hour of twelve at night, burglariously 
 break out of the said dwelling-house. 
 
 HOUSE BREAKING. 
 
 (Section 458 (a).) 
 
 At on , A. did break and enter by 
 
 day the dwelling-house of B., there situated, and, twelve silver forks of the 
 value of twenty dollars, the property ot the said B., then and there being 
 found therein, did then and there steal. 
 
 OR, 
 
 (Section 459.) 
 
 At on , A. did break and enter by day 
 
 the dwelling-house of B., there situated, with intent to commit an indictable 
 offence therein, to wit, to steal the goods then and there being in the said 
 dwelling-house. 
 
 BREAKING SHOP, ETC. 
 
 (Section 460.) 
 
 At on , IA. did break and enter the 
 
 shop of B., there situated, and five boxes of cigars of the value of twenty 
 dollars, the property of the said B., then and there being found therein, did 
 then and there steal 
 
 OR, 
 (Section 460.) 
 
 At on , A. did break and enter a 
 
 certain building, there situated, and being within the curtilage of and 
 occupied with the dwelling-house of B., but not connected with or forming 
 part of the said dwelling-house either immediately or by means of any 
 covered or enclosed passage, and one horse of the value of seventy-five dollars, 
 the property of the said B., then and there being found in the said building, 
 did then and there steal.
 
 656 MANNER OF STATING OFFENCES. 
 
 OR, 
 (Section 461.) 
 
 At on , A. did break and enter the 
 
 shop of B., there situated, with intent to commit an indictable offence therein, 
 to wit, to steal the goods and chattels of the said B., then and there being 
 in the said shop. 
 
 OR, 
 
 (Section 461.) 
 
 At on . A. did break and enter a 
 
 certain building there situated and being within the curtilage of and 
 occupied with the dwelling-house of B., but not connected with or forming 
 part of the said dwelling-house either immediately or by means of any 
 covered or enclosed passage, with intent then and there the goods and chat- 
 tels of the said B., then being in the said building, to steal. 
 
 BEING FOUND IN A DWELLING HOUSE BY NIGHT. 
 
 (Section 462.) 
 
 At on , about the hour of twelve at 
 
 night, A. unlawfully did enter (or " was in ") the dwelling-house of B., there 
 situated, with intent the goods and chattels of the said B. to steal. 
 
 BEING FOUND ARMED WITH INTENT TO BREAK AND ENTER. 
 
 (Section 463 (a).) 
 
 At on , A. was found, by day, armed 
 
 with a certain dangerous and offensive weapon ( or " instrument " ) , to wit, 
 [describe it], with intent to break and enter the dwelling-house of B., there 
 situated, and to commit therein an indictable offence, to wit, to steal the 
 goods and chattels of the said B. then being in the said dwelling-house. 
 
 OR, 
 
 (Section 463 (6).) 
 
 At on , A. was found, by night 
 
 armed with a certain dangerous and offensive weapon (or "instrument"), 
 to wit, [describe it], with intent to break and enter a certain building of 
 B. there situated, and to commit therein an indictable offence, to wit, to 
 steal the goods and chattels of the said B. then being in the said building. 
 
 HAVING POSSESSION, BY NIGHT, OF HOUSE-BREAKING 
 
 INSTRUMENTS. 
 (Section 464 (a).) 
 
 At on , A. was found, about the 
 
 hour of twelve at night, without lawful excuse, in possession of certain 
 house-breaking instruments, to wit, [describe them], 
 
 BEING FOUND DISGUISED BY NIGHT. 
 
 (Section 464 (c).) 
 
 At on , A was found, by night, with- 
 
 out lawful excuse, with his face masked (or " blackened "). 
 
 BEING FOUND DISGUISED BY DAY, WITH INTENT. 
 
 (Section 464 (d).) 
 
 At on , A. was found, by day, with- 
 
 out lawful excuse, in a certain disguise, to wit [describe the disguise], with 
 intent then and there to commit an indictable offence, to wit, [mention the 
 offence].
 
 MANNER OF STATING OFFENCES. 657 
 
 FORGERY. 
 
 (Section 466.) 
 
 At on , A. knowingly did forge a certain 
 
 document, to wit, [describe the document by its usual name, or set forth a 
 copy of it], with the intention that, &c. (See the section). 
 
 UTTERING A FORGERY. 
 (Section 467.) 
 
 At on , A., knowing a certain docu- 
 
 ment, to wit, [describe it], to be forged, did utter (or "use," or "deal 
 with," or "act upon," or " attempt to use," etc.,) the said forged document, 
 as if it were genuine. 
 
 FORGING PUBLIC SEALS. 
 (Section 468 (a).) 
 
 At on , A. knowingly did forge a cer- 
 
 tain public seal, to wit, the public seal of the Dominion of Canada, which 
 forged seal purported to be genuine. 
 
 UTTERING FORGED SEALS. 
 (Section 467.) 
 
 At on , A., knowing a certain seal, to 
 
 wit, a seal purporting to be the public seal of the Dominion of Canada, to 
 be forged, did use the said forged seal as if it were genuine. 
 
 UNLAWFULLY PRINTING PROCLAMATION. 
 
 (Section 474.) 
 
 At on , A. did print a certain pro- 
 
 clamation, to wit [describe it], and did then and there unlawfully cause the 
 same to falsely purport to have been printed by the King's Printer for 
 Canada, knowing that the same was not so printed. 
 
 SENDING A FALSE TELEGRAM. 
 
 (Section 475.) 
 
 At on , A., with intent to defraud, did cause 
 
 and procure a certain telegram in the words and figures following, [set out 
 the telegram], to be sent, (or "delivered"), to B., as being sent by the 
 authority of C., knowing that it was not sent by such authority, with in- 
 tent that the said telegram should be acted on as being sent by the said C. 
 
 SENDING FALSE TELEGRAMS, OR LETTERS, WITH INTENT TO 
 
 INJURE OR ALARM. 
 (Section 476.) 
 
 At on , A., with intent to injure (or "alarm") 
 
 B., did send (or "cause" or "procure to be sent"), to the said B., a 
 certain telegram (or "letter") containing matter which he the said A., 
 knew to be false, to wit, a telegram ' (or "letter,") in the words and 
 figures following, [set out the telegram or letter], 
 
 COUNTERFEITING REVENUE STAMPS. 
 
 (Section 479 (a).) 
 
 lAt on , A. fraudulently did counterfeit 
 
 a certain revenue stamp, to wit, [describe it]. 
 
 SELLING COUNTERFEIT REVENUE STAMPS. 
 
 (Section 479 (6).) 
 
 At on , A. knowingly did sell (or "ex- 
 
 pose for sale," or " utter," or " use,") a certain counterfeited revenue stamp, 
 to wit, [describe it]. 
 
 C.C.P. 42
 
 658 MANNER OF STATING OFFENCES. 
 
 FALSIFYING REGISTERS. 
 
 (Section 480 (a).) 
 
 At on , A. unlawfully did destroy Cor 
 
 "deface," or "injure,") a certain register then and there required by law 
 to be kept as the register (of " baptisms," or " marriages," or " deaths," 
 or "burials,") of the parish of ., 
 
 OR, 
 
 (Section 480 (6).) 
 
 At on , A. unlawfully did insert in a certain 
 
 register then and there required by law to be kept as the register of births 
 [etc.], of the parish of , a certain entry known by him. the said 
 
 A., to be false, and relating to the birth (or " marriage"), [etc.], of 
 
 FALSELY CERTIFYING EXTRACTS FROM REGISTERS. 
 
 (Section 481.) 
 
 At on , A., being a person authorized and 
 
 required by law to give certified copies of entries in a certain register, 
 then and there required by law to be kept as the registry of births (.or 
 "marriages") etc., of the parish of did certify a certain 
 
 writing to be a true copy of (or extract from") a certain entry in the said 
 register to wit, an entry of the birth (or "marriage"), [etc.], of 
 knowing the same to be false. 
 
 FALSE ENTRIES IN BOOKS RELATING TO PUBLIC FUNDS. 
 
 (Section 484 (a).) 
 
 At on , A., in a certain book of account 
 
 kept by the Bank, for the Government of Canada, in which said 
 
 book w-ere then kept and entered the accounts of the owners of certain trans- 
 ferable stock, [annuity or other public fund], wilfully, with intent to de- 
 fraud, did make a certain false entry, to wit, [describe the false entry]. 
 
 FRAUDULENT TRANSFER OF STOCK. 
 
 (Section 484 (6).) 
 
 At on , A., a transfer of a certain share 
 
 and interest of and in certain stock [annuity or other public fund], trans- 
 ferable at the Bank, acting therein for the Government of Can- 
 ada, to wit, the share and interest of B., of and in [mention the amount 
 and description of the stock, etc.], did, with intent to defraud, make, in 
 the name of C., he the said C. not being then the true and lawful owner 
 of the said stock, [etc.], or any part thereof. 
 
 MAKING FALSE DIVIDEND WARRANTS. 
 
 (Section 485.) 
 
 At on , A., being a clerk in the employ 
 
 of the Government of Canada, with intent to defraud, did make out and de- 
 liver to one B., a certain dividend warrant for five hundred dollars, being a 
 greater amount than the said B. was then entitled to, the amount to which 
 the said B. was then entitled being only three hundred dollars. 
 
 FORGERY OF A TRADE MARK. 
 
 (Section 488.) 
 
 At on , A. knowingly did forge (or cause to be 
 
 forged"), a certain trade-mark, to wit, [describe it] with intent to defraud. 
 
 FALSELY APPLYING A TRADE MARK. 
 
 (Section 488.) 
 
 At on , A. with intent to defraud, did 
 
 falsely apply (or "cause to be applied") to certain goods, to wit, [describe 
 them], a certain trade-mark, to wit, [describe it], (or "a mark so nearly 
 resembling a certain trade-mark, to wit. [describe it], "as to be calculated 
 to deceive ").
 
 MANNER OF STATING OFFENCES. 659 
 
 COMBINATION IN RESTRAINT OF TRADE. 
 
 (Section 498 (a).) 
 
 At on , A. conspired, combined, agreed 
 
 and arranged with B., C. and D., and with the Company, 
 
 to unduly limit the facilities for transporting (or "producing" or "supply- 
 ing," or "storing," or "dealing in," or "manufacturing"), cotton goods, 
 [etc.], a subject of trade and commerce. 
 
 OR, 
 
 (Section 498 (d).) 
 
 At on , A. conspired, combined, agreed, 
 
 and arranged with B., C. and D., and with the Company 
 
 to unduly prevent and lessen competition in the production (or " manufac- 
 ture," or " purchase," or " barter," or " sale," or " transportation," or 
 
 "supply"), of woollen goods, [etc.], a subject of trade and commerce. 
 
 CRIMINAL BREACH OF CONTRACT. 
 
 (Section 499.) 
 
 At on , A. wilfully did break a certain 
 
 contract, to wit, [describe it], theretofore made by him, well knowing (or 
 "having reasonable cause to believe") that the probable consequences of 
 his so doing would be to endanger human life (or " cause serious bodily 
 injury," or " expose valuable property to destruction," or "serious injury.") 
 
 INTIMIDATION. 
 
 (Section 501 (a).) 
 
 At on , A. and B., wrongfully and with- 
 
 out lawful authority, did use violence to (or injure the property of") C., 
 by [describe the personal violence or the injury to property, (as the case 
 may be)], with a view to compel the said C. to employ D., E. and F., whom 
 he the said C., had a lawful right to refuse to employ (or " to compel the 
 said C. to discharge from and refuse to keep in his employ G., and H., whom 
 he the said C. had a lawful right to retain in his employ"). 
 
 OR, 
 
 (Section 501 (&).) 
 
 At on , A., B. and C., being workmen 
 
 in the employ of D., wrongfully and without lawful authority, did, by 
 means of threats of using violence to (or "of injuring the property of") 
 the said D., then and there intimidate the said D., with a view to compel 
 the said D. to raise and advance the wages of them the said A., B. and C. 
 
 OR, 
 
 (Section 501 (e).) 
 
 At on , A. and B., wrongfully, and 
 
 without lawful authority, did follow C. in a disorderly manner in or through 
 the street or road called with a view to compel the said C. 
 
 to cease working for D., he the said C., having a lawful right to continue 
 to work for the said D. 
 
 INTIMIDATION BY PICKETING. 
 
 (Section 501 (/).) 
 
 At on , and on divers other days before 
 
 and since that date, A. and B., wrongfully, and without lawful authority, 
 did beset and watch the building, workshop, and premises of C., where D. 
 was then working in the employ of the said C., with a view to compel the 
 said D. to cease from working in the employ of the said C., he the said D. 
 having a lawful right to continue to work in the employ of the said C., (or 
 " with a view to compel the said C. to discharge and to discontinue employ- 
 ing the said D., he the said C., having a lawful right to continue the said 
 D. in his employ").
 
 660 MANNER OF STATING OFFENCES. 
 
 INTIMIDATION BY ASSAULTS OR THREATS, IN PURSUANCE OF 
 AN UNLAWFUL COMBINATION. 
 
 (Section 502.) 
 
 At on , A., B. and C., having, before then, 
 
 conspired, combined, confederated and agreed together to raise the rate of 
 wages then usually payable to workmen, in a certain trade, business and 
 manufacture, to wit, the trade, business and manufacture of brass found- 
 ing (or "calico printing," or "silk weaving," or "engine making," or 
 "cigar making,"), [etc.], did, then and there in pursuance of the said con- 
 spiracy, unlawfully assault (or " use violence," or " threats of violence 
 to") B., with intent to hinder him from working (or "being employed") 
 at such trade, business, and manufacture. 
 
 TRADING STAMPS. 
 
 (Section 505.) 
 
 On at , A. issued (or " gave,'' or 
 
 "sold," or "offered to issue," etc.), to B., a merchant (or "dealer in 
 goods") certain trading stamps, [describe them and give the quantity], for 
 use in his business. 
 
 PART VIII. 
 
 WILFUL AND FORBIDDEN ACTS RESPECTING PROPERTY. 
 
 WILFULLY DESTROYING A HOUSE, ETC., AND ENDANGERING 
 
 LIFE. 
 
 (Section 510 (A) (a).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did by means of an 
 explosion destroy (or "damage") a certain dwelling-house (or "ship," or 
 "boat"), to wit, [describe it], the property of B., there being certain per- 
 sons, to wit, C. and D., then in the said dwelling-house, [etc.], and the said 
 destruction (or "damage") did, then and there, cause actual danger to life. 
 
 WILFULLY DESTROYING A RIVER BANK. ETC., AND CAUSING 
 DANGER OF INUNDATION. 
 
 (Section 510 (A) (6).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did destroy (or " dam- 
 age") the bank (or "dyke") of a certain river called the river St. Law- 
 rence, whereby and by means whereof there was actual danger of inunda- 
 tion. 
 
 WILFULLY DESTROYING BRIDGES. 
 
 (Section 510 (A) (c).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did destroy (or 
 
 "damage") a certain bridge (or "viaduct," or "aqueduct") situated in 
 
 aforesaid, and over (or "under") which a certain 
 
 highway (or "railway," or "canal"), to wit, [describe it], passes, and 
 the said destruction (or "damage"), was so done by the said A., with in- 
 tent to render and did render the said bridge (or "viaduct," or "aqueduct."' 
 or "highway," or "railway," or "canal") dangerous or impassable.
 
 MANNER OF STATING OFFENCES. 661 
 
 WILFULLY DESTROYING OR DAMAGING A RAILWAY. 
 
 (Section 510 (A) (d).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did destroy (or "dam- 
 age") a certain railway, to wit, [describe it], with intent to render and so 
 as to render the same dangerous or impassable. 
 
 WILFULLY DESTROYING OATTLE, ETC. 
 
 (Section 510 (B) (6).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did destroy (or "dam- 
 age") one cow, the property of B., by then and there killing (or "maim- 
 ing," or "poisoning," or "wounding") the said cow. 
 
 WILFULLY DAMAGING A SHIP WITH INTENT TO DESTROY OR 
 RENDER IT USELESS. 
 
 (Section 510 (C) (a).) 
 
 At on . A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage a certain 
 ship, to wit, [describe it], with intent to destroy (or "render useless") 
 the said ship. 
 
 WILFULLY DAMAGING A CANAL, ETC. 
 
 (Section 510 (C) (d).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage a certain 
 canal (or "navigable river"), to wit, [describe it], by then and there 
 interfering with and breaking down the flood-gates ( or " sluices " ) thereof, 
 with intent and so as thereby, then and there, to obstruct the navigation 
 thereof. 
 
 WILFULLY DAMAGING THE SLUICE OF A PRIVATE WATER. 
 
 (Section 510 (C) (e).) 
 
 At on . A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage (or 
 
 "destroy") the flood-gate (or "sluice") of a certain private water, to 
 
 wit, the fish pond of B., situated in aforesaid, with intent to 
 
 take (or "destroy"), (or "so as to cause the loss or destruction of") the 
 fish therein. 
 
 DAMAGING A PRIVATE FISHERY. 
 
 (Section 510 (C) (/).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage a certain 
 private fishery (or "salmon river"), by putting into it large quantities of 
 lime, with intent, thereby, then and there to destroy the fish therein (or 
 to be put therein). 
 
 WILFULLY DESTROYING GOODS IN PROCESS OF 
 MANUFACTURE. 
 
 (Section 510 (C) (h) .) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did destroy (or "dam- 
 age") certain goods, to wit, [describe them], the property of B., and then 
 being in process of manufacture, with intent, thereby, then and there to 
 render the same useless.
 
 662 MANNER OF STATING OFFENCES. 
 
 WILFULLY DAMAGING MANUFACTURING MACHINES. 
 
 (Section 510 (C) ().) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage (or 
 "destroy" certain agricultural (or "manufacturing") machines, to wit, 
 [describe them], the property of B., with intent, thereby, then and there to 
 render the same useless. 
 
 WILFULLY DAMAGING OR DESTROYING TREES IN A PARK, ETC. 
 
 (Section 510 (D) (a).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage, (or de- 
 stroy ") two fir trees the property of B., then growing in a certain park, 
 (or "pleasure ground," or "garden," or "land adjoining and belonging "to 
 the dwelling-house") of the said B., thereby, then and there, injuring the 
 said trees to an extent exceeding in value the sum of five dollars. 
 
 WILFULLY DAMAGING A POST-LETTER BAG, ETC. 
 
 (Section 510 (D) (6).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage (or 
 "destroy") a certain post-letter bag (or "post-letter") the property of 
 the Postmaster-General. 
 
 WILFULLY DAMAGING, BY NIGHT, PROPERTY TO THE AMOUNT 
 OF TWENTY DOLLARS. 
 
 (Section 510 (D) (e).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage (or, 
 " destroy " ) , by night, seven birch trees, the property of B., then growing 
 in a plot of land belonging to the said B.. thereby, then and there, injuring, 
 the said trees to the value of twenty dollars. 
 
 OR, 
 
 (Section 510 (D) (e).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage (or 
 "destroy"), by night, thirty -five patterns for the making of waterproof 
 coats, the property of B., thereby, then and there, injuring the said pat- 
 terns to the value of twenty dollars. 
 
 WILFULLY DESTROYING ANY OTHER PROPERTY TO THE 
 AMOUNT OF TWENTY DOLLARS. 
 
 (Section 510 (E.) ) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage (.or 
 "destroy"), one crate of crockery and glassware, the property of B., 
 therein, then and there, injuring the said crockery and glassware to the 
 value of twenty dollars. 
 
 ARSON. 
 (Section 511.) 
 
 At on . A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did set fire to a certain 
 building, to wit, a dwelling-house belonging to B., and situated in 
 
 aforesaid.
 
 MANNER OF STATING OFFENCES. 663 
 
 OR, 
 
 (Section 511.) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, and with intent to 
 defraud, did set fire to a certain building, to wit, a store situated in 
 aforesaid and belonging to him the said A. 
 
 OR, 
 (Section 511.) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did set fire to a certain 
 stack of vegetable produce (or "of mineral," or "vegetable fuel"), to wit, 
 [describe the stack], belonging to B. 
 
 ATTEMPT TO COMMIT ARSON. 
 
 (Section 512.) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did attempt to set fire 
 to a certain building, to wit, a dwelling-house belonging to B., and situated 
 in aforesaid. 
 
 WILFULLY SETTING FIRE TO CROPS, ETC. 
 
 (Section 513 (a).) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did set fire to a certain 
 crop (or "wood," or "forest," or "coppice," or "plantation," or 
 "heath," or r ' gorse," or "furze," or "fern"), to wit, (describe the crop), 
 [etc.], the property of B. 
 
 NEGLIGENTLY SETTING FIRE TO FOREST, ETC. 
 
 (Section 515.) 
 
 At on , A., negligently, reck- 
 
 lessly, and with wanton disregard of consequences, (or "in violation of a 
 certain provincial law to wit, "), did unlawfully set fire to 
 
 a certain forest (or "tree," or "manufactured lumber," etc.), situated (or 
 "being") on the Crown domain (or "land leased or lawfully held for the 
 purpose of cutting timber," etc.), so that the said forest, [etc.], was 
 injured (or " destroyed "). 
 
 PLACING OR THROWING EXPLOSIVES WITH INTENT TO 
 DESTROY A BUILDING, ETC. 
 
 (Section 112.) 
 
 At on , A., wilfully, did place near (or 
 
 "throw into") a certain building (or "ship") to wit, [describe the blind- 
 ing or ship], a certain explosive substance, to wit, five pounds of gunpowder, 
 with intent, thereby, then and there to destroy (or "damage") the said 
 building (or "ship"). 
 
 MISCHIEF ON RAILWAYS. 
 
 (Section 517 (a).) 
 
 At on , A., in a manner likely 
 
 to cause danger to valuable property, to wit. to a certain engine and certain 
 cars of the Canadian Pacific Railway, on their railway at 
 
 aforesaid, did displace a rail (or "sleeper," etc.), on 
 and belonging to the said railway.
 
 664 MANNER OF STATING OFFENCES. 
 
 OR, 
 
 (Section 517 (e).) 
 
 At on , A. did make a false 
 
 signal on (or "near") the railway of the Grand Trunk Railway Company 
 at aforesaid, in a manner likely to cause danger to 
 
 valuable property, to wit, to a certain engine and certain cars of the said 
 Grand Trunk Railway Company, on their said railway. 
 
 MISCHIEF ON RAILWAYS WITH INTENT. 
 
 (Section 517 (2).) 
 
 At on , A. did break and 
 
 injure a rail (or "sleeper") on and belonging to the railway of the Grand 
 Trunk Railway Company, at aforesaid, with intent, thereby, 
 
 then and there, to cause danger to a certain engine and certain cars of the 
 said Grand Trunk Railway Company, on their said railway. 
 
 MISCHIEF TO MINES. 
 
 (Section 520.) 
 
 At on , A. did cause a quantity 
 
 of water ( or " earth," or " rubbish," ) to be conveyed into a certain mine 
 (or "well of oil"), to wit [describe it], the property of B., with intent, 
 thereby, then and there, to injure (or "obstruct the working of") the 
 said mine (or "well of oil"). 
 
 WILFULLY REMOVING MARINE SIGNALS. 
 
 (Section 526.) 
 
 At on . A., wilfully, without legal 
 
 justification or excuse and without colour of right did alter, (or " remove," 
 or "conceal"), a certain signal (or "buoy") used upon the river St. 
 Lawrence, for the purposes of navigation. 
 
 WILFUL INJURIES TO POLL-BOOK, ETC. 
 
 (Section 528.) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did destroy, (or 
 "injure," or "obliterate") a certain writ of election, (or "return to a 
 writ of election," or "poll-book," or "voters' list." or "ballot"), [etc.], to 
 wit, [describe the election writ, etc.], prepared or drawn out according to 
 a certain law in regard to Dominion (or " provincial," or " municipal," or 
 "civic"), elections, to wit, the Act [cite the Act applying to the case in 
 hand]. 
 
 INJURIES TO BUILDINGS BY TENANTS. 
 
 (Section 529.) 
 
 At on , A., being then 
 
 possessed of a certain dwelling-house situated in aforesaid, 
 
 and then held by him the said A., as tenant thereof for an unexpired term 
 of three years, did wilfully, without legal justificaton or excuse, without 
 colour of right, and to the prejudice of B., the owner thereof, pull down and 
 demolish the said dwelling-house. 
 
 WILFULLY DESTROYING TREES AFTER TWO PREVIOUS 
 
 CONVICTIONS. 
 (Section 533.) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse and without colour of right, did damage (or 
 "destroy") one shrub, so that the injury done by such damage (or 
 " destruction ") amounted to the value of fifty cents, the said shrub being
 
 MANNEK OF STATING OFFENCES. 665 
 
 the property of B., and then growing in a certain plot of land situated and 
 being in aforesaid : And the said jurors say, that, heretofore, to 
 
 wit, at on (before the committing of the herein- 
 
 before mentioned offence) the said A. was duly convicted, before C., one of 
 His Majesty's justices of the peace for the district of of 
 
 having at on [set out the offence 
 
 forming the basis of the first conviction], and was adjudged, for his said 
 offence, to pay, [etc.], and, in default of payment, [etc.], to be imprisoned, 
 [etc.] : And the said jurors further say, that heretofore, to wit, at 
 
 on , (before the committing of the 
 
 firstly hereinbefore mentioned offence, but after the next hereinbefore men- 
 tioned conviction), the said A. was again duly convicted before D., one of 
 His Majesty's justices of the peace for the district of 
 
 of having at on ,[set out the 
 
 second conviction] : And so the jurors aforesaid say, that, on the day and 
 year first aforesaid, the said A., wilfully, without legal justification or 
 excuse and without colour of right, did damage (or "destroy") the said 
 shrub, and did thereby do injury amounting to the value of fifty cents, after 
 having been twice convicted of the offence of wilfully damaging (or 
 destroying") a shrub, (or "tree"), [etc.], and doing injury amounting to 
 the value of at least twenty-five cents. 
 
 WILFULLY DAMAGING VEGETABLE PRODUCTIONS AFTER 
 PREVIOUS CONVICTION. 
 
 (Section 534.) 
 
 At on , A., wilfully, without legal 
 
 justification or excuse, and without colour of right, did damage (or 
 "destroy") fifty cauliflowers, the property of B., then growing in a certain 
 garden of the said B., situated in aforesaid : And the said 
 
 jurors say, that, heretofore, to wit, at on 
 
 (before the committing of the hereinbefore mentioned offence), 
 the said A. was duly convicted before C., one of His Majesty's justices of 
 the peace, for the district of of having at on 
 
 , [set out the offence forming the basis of the first con- 
 viction] , and was adjudged, for his said offence, to pay, [etc.] , and in default 
 of payment, [etc.], to be imprisoned, [etc.] : And so the jurors aforesaid 
 say, that on the day and year first aforesaid, A., did, wilfully, without 
 legal justification or excuse, and without colour of right, damage (or 
 "destroy"), the said fifty cauliflowers after having been previously con- 
 victed of the like offence of wilfully damaging (or "destroying") vegetable 
 productions in a garden, [etc.]. 
 
 PART IX. 
 
 OFFENCES RELATING TO BANK NOTES. COIN AND COUNTERFEIT 
 
 MONEY. 
 
 PURCHASING, RECEIVING OR POSSESSING A FORGED BANK 
 
 NOTE. 
 
 (Section 550.) 
 
 On at , A., without lawful authority 
 
 or excuse, purchased, (or "received") from B. (or "had in his posses- 
 sion") a forged bank note, to wit, (describe it), knowing it to be forged. 
 
 COUNTERFEITING CURRENT SILVER COIN. 
 
 (Section 552 (a).) 
 
 At on , A. did unlawfully make (or 
 
 "begin to make") twenty pieces of false and counterfeit coin resembling 
 (or "apparently intended to resemble or pass for") current silver dollars 
 (or "half dollars," or "ten cent piecos").
 
 666 MANNER OF STATING OFFENCES. 
 
 BUYING, SELLING, OR DEALING IN COUNTERFEIT COIN. 
 
 (Section 553.) 
 
 At on , A. did, unlawfully and with- 
 
 out lawful authority or excuse, buy (or '"sell," or "receive," or "pay," 
 or "put off") twenty pieces of false and counterfeit coin, resembling (.or 
 "apparently intended to resemble or pass for") current silver dollars, 
 at and for a lower rate and value than the same imported (or were appar- 
 ently intended to import). 
 
 IMPORTING COPPER COIN. 
 (Section 554.) 
 
 At on , A. did, unlawfully, import 
 
 and receive into Canada twelve pieces of copper coin not being current 
 copper coin with the intention of putting the same into circulation as cur- 
 rent copper coin. 
 
 EXPORTING COUNTERFEIT COIN. 
 (Section 555.) 
 
 At on , A. did, unlawfully and with- 
 
 out lawful authority or excuse, export from Canada, twelve pieces of false 
 and counterfeit coin resembling (or "apparently intended to resemble and 
 pass for") current silver dollars, he the said A. then and there well know- 
 ing the same to be counterfeit. 
 
 BRINGING COINING INSTRUMENTS INTO CANADA. 
 
 (Section 557.) 
 
 At on , A., unlawfully, knowingly 
 
 and without lawful authority or excuse, did convey out of one of His 
 Majesty's Mints into Canada, one puncheon (or "counter-puncheon," or 
 "matrix"), [etc.], used or employed in or about the coining of coin. 
 
 CLIPPING CURRENT COIN. 
 
 (Section 558.) 
 
 At on , A. did unlawfully impair 
 
 (or "diminish," or "lighten"), twelve pieces of current silver coin called 
 dollars, with intent that each of the said twelve pieces so impaired, (or 
 "diminished," or "lightened"), might pass for a current silver dollar. 
 
 DEFACING AND TENDERING CURRENT COIN SO DEFACED. 
 
 (Section 559.) 
 
 At on , A. did unlawfully deface one piece of 
 
 current silver -coin, called a dollar, by then and there stamping thereon 
 certain names (or "words"), to wit , and did afterwards unlaw- 
 
 fully tender the said current silver coin, so defaced as aforesaid. 
 
 POSSESSING COUNTERFEIT COIN, WITH INTENT. 
 
 (Section 561.) 
 
 At on , A. unlawfully had in his custody and 
 
 possession twelve pieces of counterfeit coin resembling (or " apparently 
 intended to resemble, or pass for") current silver dollars, with intent to 
 utter the same, he the said A. then well knowing the same to be counterfeit. 
 
 COUNTERFEITING FOREIGN COIN. 
 
 (Section 563 (a).) 
 
 'At on , A., unlawfully did make (or " begin to 
 
 make") a counterfeit coin resembling (or "apparently intended to 
 resemble or pass for") the silver coin of a foreign country, to wit, the 
 silver coin of the United States of America, called a dollar, not being 
 current coin.
 
 MANNER OF STATING OFFENCES. 667 
 
 UTTERING COUNTERFEIT COIN. 
 
 (Section 564.) 
 
 At on , A. did utter to B. one piece 
 
 of counterfeit coin, resembling (or " apparently intended to resemble or 
 pass for " ) , the current silver coin called a dollar, he the said A. then well 
 knowing the same to be counterfeit. 
 
 UTTERING LIGHT COIN. 
 (Section 565.) 
 
 At on , A. did utter as being current 
 
 a certain silver coin, to wit, a silver dollar of less than its lawful weight, 
 he the said A. then well knowing the said coin to have been impaired, (or 
 'diminished," or "lightened"), otherwise than by lawful wear. 
 
 ATTEMPT TO COMMIT AN INDICTABLE OFFENCE. 
 
 (Section 572.) 
 
 At on . , A. did attempt to 
 
 commit the indictable offence of theft of one gold watch of the value of 
 sixty-five dollars of the goods and chattels of B. 
 
 OR, 
 
 (Section 572.) 
 
 At on , A. did solicit and 
 
 advise B. to steal one piano of the goods and chattels of C., whereby he the 
 said A., did attempt to commit the indictable offence of theft. 
 
 OR, 
 
 (Section 572.) 
 
 At on , A. did attempt to 
 
 commit the indictable offence of bigamy (or "burglary"), [etc.], by then 
 and there, [set out the means used in making the attempt], 
 
 CONSPIRACY TO COMMIT AN INDICTABLE OFFENCE. 
 
 (Section 373.) 
 
 At on , A., B. and C. did conspire, 
 
 combine, confederate and agree together to commit a certain indictable 
 offence, to wit, the crime of arson (or " burglary," or " rape," or " forgery "), 
 [etc.] by then and there conspiring, combining, confederating, and agree- 
 ing together to set fire to (or "break and enter") or [etc.], [describe the 
 crime agreed upon and mention the property or person, or both, (as the case 
 may be), to be affected thereby]. (A count may be added setting out the 
 overt acts of the conspiracy.) 
 
 CONSPIRACY TO BRING FALSE ACCUSATION OF CRIME. 
 
 (Section 573.) 
 
 At on , A. B., and M. B., (his wife). 
 
 C. D. and E. F. did conspire, combine, confederate and agree together to 
 prosecute G. H., for an alleged offence, to wit, upon a false charge or accu- 
 sation falsely charging and accusing that he, the said G. H., had, then, 
 lately before, assaulted, ravished and carnally known the said M. B. with- 
 out her consent, they the said A. B., M. B., C. D., and E. F., then well 
 knowing the said G. H., to be innocent of the said alleged offence. 
 
 And the said jurors further present that, afterwards, at aforesaid, 
 
 on the day and year aforesaid, the said A. B., and M. B., his wife, C. D., 
 
 and E. F., in pursuance of their said conspiracy, did attend together before 
 
 J. N., Esquire, one of His Majesty's justices of the peace for the district of 
 
 to whom they, the said A. B., and M. B., his wife, C. D., and E. F.,
 
 6G8 MANNER OF SEATING OFFENCES. 
 
 did then and there make the said false charge and accusation, falsely 
 charging and accusing the said G. H., with and of the rape aforesaid ; and, 
 then and there, before the said J. N., she, the said M. B., in the presence of 
 and in company with the said A. B., C. D., and E. F., and in further pur- 
 suance of the said conspiracy, did make her written and sworn information 
 and complaint, falsely charging and accusing that the said G. H., had, then, 
 lately before, assaulted, ravished and carnally known her, the said M. B., 
 without her consent. 
 
 And the said jurors further present, that, afterwards, to wit, in the 
 Court of King's Bench [or (name the Court), as the case may be] of the 
 province of, holden at in and for the 
 
 district ( or " county ") of on .in the 
 
 year aforesaid, they the said A. B., and M. B. his wife, C. D., and E. F., in 
 further pursuance of their said conspiracy, did cause and procure to be 
 falsely laid and exhibited, before the Grand Jury then and there sworn 
 before the said Court, a bill of indictment falsely charging and accusing 
 the said G. H., with and of the rape aforesaid ; which said bill of indict- 
 ment was by the said Grand Jury, then and there, returned into the said 
 Court, thus endorsed : " No Bill." 
 
 ACCESSORY AFTER THE FACT INDICTED WITH THE 
 PRINCIPAL, OFFENDER. 
 
 (Section 574.) 
 
 (After chanjtng A., as the principal offender, with the principal offence, 
 proceed thus) : 
 
 And the said jurors further present, that C., well knowing the said A. to 
 have done and committed the said offence, as aforesaid, did, after the same 
 was so done and committed as aforesaid, to wit, on the day and year afore- 
 said, receive, comfort and assist him, the said A., in order to enable him to 
 escape. 
 
 ACCESSORY AFTER THE FACT INDICTED ALONE, THE 
 PRINCIPAL OFFENDER HAVING BEEN CONVICTED. 
 
 (Section 575.) 
 
 (After stating the principal offence and the principal offender's convic- 
 tion, proceed thus) : 
 
 And the said jurors further present, that C., well knowing the said A. 
 to have done and committed the said offence, as aforesaid, did, after the 
 same was so done and committed as aforesaid, to wit. on the day and year 
 aforesaid, receive, comfort and assist him, the said A., in order to enable 
 him to escape.
 
 INDEX. 
 
 (Reference is to page numbers.) 
 ABANDONING. 
 
 Appeal, 349, 358. 
 ABETTORS, 59-62. 
 ABORTION. 
 
 Operating with intent, 52. 
 
 Attempt to procure, 66. 
 ABSENCE. 
 
 Of accused stops proceedings in preliminary inquiry, 154. 
 
 Different in summary convictions, 154. 
 ABSOLUTE JURISDICTION OF MAGISTRATE. 
 
 Disorderly houses, 392-397. 
 
 Seafaring persons, 397. 
 
 In certain provinces, 397. 
 
 In cities of 25,000, 399. 
 ACCESSORIES. 
 
 Before the fact, 59, 60. 
 
 After the fact, 62, 63. 
 
 Husband and wife as, 63. 
 ACCOMPLICES, 59. 
 
 Should not be bailed out, 200. 
 
 Evidence of, 205. 
 ACCUSED. 
 
 Compelling appearance of, 139-153. 
 
 Procedure on appearance of, 177-185. 
 " on non-appearance of, 154. 
 
 Absence of, prevents proceeding, 154. 
 
 Must be present at preliminary inquiry, 154, 177. 
 
 If discharged on preliminary inquiry, may be re-arrested, 182, 222. 
 
 Remand of, 195-199. 
 
 Bail on remand, 199, 200. 
 
 Evidence must be given in presence of, 207. 
 
 Depositions to be read over to, 211. 
 
 Statement of, on preliminary inquiry, 211-214. 
 
 Giving evidence in his own behalf, 212, 538, 539. 
 
 Witnesses for, 221. 
 
 Committing for trial, 221-224. 
 
 Discharge of, 222. 
 
 Confessions and admissions of, 214-220. 
 
 Election of, on summary trial, 407-410. 
 
 Admissions by, 416. 
 ACKNOWLEDGMENT. 
 
 Of recognizance, 320. 
 ACQUITTAL. 
 
 As a bar to further actions, 39, 40, 41, 451. 
 
 Of theft not bar to receiving, 41. 
 
 After summary trial, Part XV., 183. 
 
 " XVI., 182, 183. 
 preliminary inquiry, 121, 182, 222.
 
 670 INDEX. 
 
 ACTIONS. 
 
 Against Justices and Magistrates, 90-113, 200. 
 
 Vexatious, against Justices and Magistrates, 12, 91. 
 
 None for anything done under conviction until quashed, 91, 92. 
 
 Magistrate acting without, or in excess of, jurisdiction, 92, 93. 
 " " maliciously, 92, 97. 
 
 Construction of ss. 1 and 2 of 11 and 12 Viet, c. 44, 93. 
 
 Magistrate must have jurisdiction over the particular matter or 
 individual, 94. 
 
 When time limit for, begins to run, 97. 
 
 Against Magistrates for wilfully exacting unauthorized fees, 105, 
 106. 
 
 Order protecting Justice or Magistrate from, 428, 429, 482, 483. 
 
 Limitation of, against Justices, 91-95, 97, 551, 552. 
 against officials, 551, 552. 
 
 Pleading general issue, 552. 
 
 Tender of amends, 101, 551, 552. 
 
 Notice of action, 97-100, 551. 
 ACTUAL BODILY HABM. 
 
 Jurisdiction of Magistrates, 382, 383, 423. 
 ACTUS NON FACIT REUM NISI MENS SIT BEA, 47. 
 ADJOURNMENT. 
 
 Detention of accused pending, 92, 94. 
 
 To examine sick witnesses, 187, 188. 
 
 Bail on remand, 199, 200. 
 
 In summary conviction trials, 152, 155, 255, 257, 260-263. 
 
 Must be to certain time and place, 257. 
 
 Proceedings on non-appearance of defendant, after, 262. 
 
 Power of, is discretionary with Justice, 261, 262. 
 
 Reasonable, must be allowed, 262, 263. 
 
 When judgment reserved, 263. 
 
 Waiver of right to, 263, 264. 
 
 Of hearing appeal. 340, 341. 
 ADJUDICATION, 221, 222, 267-269, 304, 305. 
 
 Enforcing. 309-311. 
 
 ADMINISTRATION OF LAW AND JUSTICE, 3. 
 ADMIRALTY. 
 
 Jurisdiction on inland lakes, 132. 
 
 " high seas, 169. 
 
 ADMISSIBILITY. 
 
 Of evidence, 208, 538-542. 
 ADMISSIONS AND CONFESSIONS. 
 
 By accused, 214-220, 416, 540, 541. 
 ADMISSION TO BAIL. See Bail. 
 
 In extradition proceedings, 234, 475. (See Recognizance.) 
 ADVERSE WITNESS. 
 
 Impeaching, 546. 
 ADVOCATES. 
 
 Not eligible as Justices of the Peace, 75. 
 AFFIDAVIT. 
 
 Of service of summons, 147, 148. 
 
 In habeas corpus proceedings, 460-462. 
 
 In certiorari proceedings, 489, 511, 518.
 
 INDEX. 671 
 
 AFFIDAVIT Continued. 
 
 Of justification on recognizance, 510, 511. 
 
 Of execution of recognizance, 510, 511. 
 
 Forms of, 599. 
 AFFIRMATION. 
 
 By witness instead of oath, 203, 548, 549. 
 AFFKAYS, 54. 
 AGE OF CHILD. 
 
 Under 7 years old, 43. 
 
 Evidence of, 44, 549. 
 AIDERS AND ABETTORS, 58-62, 244. 
 AID. 
 
 To peace officer, 556. 
 ALBERTA, PROVINCE or. 
 
 Justices of the Peace in, 26, 27. 
 
 Crown practice rules in, 533-537. 
 ALIENS. 
 
 Offences by, on waters, 132. 
 ALLEGIANCE. 
 
 Oath of, 9, 31. 
 ALTERNATIVE. 
 
 Charges in informations, 134, 185, 186, 246. 
 
 Convictions must not charge offences in the, 273. 
 AMENDS. 
 
 Tender of, by Justices, 101, 551, 552. 
 AMENDMENT. 
 
 Of information, 122, 134, 185, 245, 246, 255. 
 
 " commitment, 223, 444, 466, 484. 
 
 " conviction, 344, 352, 427, 444, 504-507. 
 ANIMALS, CRUELTY TO. 
 
 Prosecution to be commenced in 3 months after offence, 551. 
 APPEAL. 
 
 From order for sureties, there is no, 319. 
 " convictions or orders, 320-350. 
 
 Person aggrieved, 321. 
 
 Procedure on appeal, 327-339. 
 
 Notice of appeal, 329-334. 
 
 Contents of notice, 333, 334. 
 
 Recognizance or deposit, 334-339. 
 
 Hearing of appeal, 339-344. 
 
 Adjournment of hearing, 340. 
 
 Judgment on, is final, 341, 342. 
 
 Evidence taken before Justice, 341, 342. 
 
 Judgment on merits, 343, 344. 
 
 Costs when appeal not prosecuted, 344-346. 
 
 Proceedings when appeal fails, 346-347. 
 
 Transmission of conviction by Justice, 347, 348. 
 
 Costs of appeal and recovery of same, 349. 
 
 Abandonment of appeal, 349, 350. 
 
 Stating a case, 350-354. See Stated Case. 
 
 By way of reserved case, 416-421. 
 
 From conviction under sec. 773, 452, 453. 
 
 In habeas corpus proceedings, 479, 480. 
 
 By way of certiorari, 487-489.
 
 672 INDEX. 
 
 APPEARANCE. 
 
 Waiver of irregularities in summons, 151, 152. 
 
 Jurisdiction by, 153, 159, 252. 
 Accused's non-, 154, 253, 254. 
 Prosecutor's non-, 255. 
 APPLICATION. 
 Of summary convictions, Part XV., 237. 
 
 " fines, 105. 
 ARMY AND NAVY. 
 
 Arrests by officers of, without warrant, 555. 
 ARRAIGNMENT. 
 
 Of defendant in summary convictions, 256. 
 " accused in summary trials, 406-413. 
 ARRESTS. 
 
 Warrant of, 139, 140, 155-161. 
 Resistance to, when irregular, 168. 
 By peace officer without warrant, 555-557. 
 " owner of property, 555. 
 " any person without warrant, 553-555. 
 During flight. 556, 557. 
 
 the night, 162, 555. 
 
 Of persons committing breaches of the peace, 557. 
 " " in common gaming house, 390. 
 " suspected deserters, 170. 
 " witnesses disobeying subprena, 186, 565. 
 " persons out of jurisdiction, 167-169. 
 " " on suspicion without warrant, 159, 556. 
 Manner and mode of arrest, 161-166, 556, 557. 
 Officer should have warrant with him, 162, 556. 
 Constable using handcuffs, 163. 
 By constable who laid the information, 163. 
 Cause of arrest should be given, 162, 556. 
 Using force in making, 163, 164, 556, 557. 
 Excess of force in making, 163, 556, 557. 
 Breaking open doors, 164, 165, 166. 
 Pursuit into adjoining division, 166, 167. 
 On backed warrant, 167-169. 
 Proceedings after, 170, 171. 
 Persons may be re-arrested when discharged on preliminary 
 
 inquiry, 182. 
 
 On telegram, 160, 161, 470, 483. 
 Without warrant, 553-557. 
 Private persons making, 165, 166, 553-555. 
 Preventing escape after, 555, 557. 
 
 breach of peace, 557. (See Constable.) 
 ARTICLES OF THE PEACE. 
 
 Sureties to keep, 314-319, 441, 442. 
 Forms, 582, 583. 
 ASSAULT. 
 
 Definition of, 295. 
 Aggravated, 297. 
 Common, 242, 295.
 
 INDEX. 673 
 
 ASSAULT Continued. 
 
 Costs on conviction of, 298-303. 
 
 Occasioning bodily harm, 382, 383, 443. 
 
 Of peace officer in discharge of his duty, 383, 443. 
 
 Conviction for, on complaint only for sureties to keep the peace, 
 
 268. 
 
 Of person executing process, 149. 
 Indecent, 383, 443. 
 Conviction of, as a bar, 39. 
 With intent to murder, 50. 
 Title to land in question, 241, 295. 
 Dismissal of complaint for, 296. 
 Certificate of dismissal, 296, 297. 
 Bar to civil action, 296-298. 
 Costs on conviction by indictment for, 434. 
 ASSEMBLY. 
 
 Unlawful, 55, 56. 
 
 ASSOCIATE JUSTICES AND PRIORITY, 84-86. 
 ATHEIST. 
 
 Competency of, as a witness, 205, 206. 
 ATTEMPT. 
 
 To commit offences, 64-67, 138. 
 Assault with intent to rape, 65. 
 ATTENDANCE. 
 
 Of witnesses at preliminary inquiry, 186. 
 
 " summary conviction trial, 247, 248. 
 " summary trial of indictable offences, 449. 
 ATTORNEY. 
 
 Cannot act as Justice of the Peace, 7, 21, 24, 26, 75. 
 ATTORNEY-GENERAL. 
 
 May intervene in summary trials, 401. 
 Entitled to certiorari as of course, 489, 491, 492. 
 AUTREFOIS ACQUIT, 39-41, 451. 
 
 " CONVICT, 39-41, 451. 
 
 BACKING WARRANTS, 167, 168, 16B, 247. 
 A purely ministerial act, 168. 
 Form of endorsement, 167, 168, 559, 582. 
 Distress Warrants, 305. Form, 582. 
 BAIL. (See Recognizance.) 
 
 Under sec. 696 of the Code, 227, 228. 
 After committal, 229-235. 
 In extradition cases, 234. 
 Order for, by Court or Judge, 235. 
 On remand at preliminary inquiry, 199, 200. 
 " adjournment, 261, 264. 
 Render of accused by sureties, 231. 
 
 Running of sentence suspended while accused out on, 308. 
 Estreat of recognizance, 236. 
 Commitment on surrender by bail, form of, 614, 
 BAWDY HOUSES. (See Disorderly house.) 
 BARRISTER- AT-LAW. 
 
 Not eligible as Justice of the Peace, 21, 75. 
 C.C.P. 43
 
 674 INDEX. 
 
 BENCH WARRANTS. 
 
 Form of, 591. 
 BETTING HOUSE. 
 
 Summary trial for keeping, 388. 
 
 Punishment for, on conviction, 443. 
 BEYOND THE SEAS. 
 
 Offences on land, 169. 
 BIAS OB INTEREST. 
 
 Justices disqualified by, 77-82. 
 BINDING OVER. 
 
 Prosecutor, 222, 223, 225. 
 
 Witnesses, 225, 226. 
 BOUNDARIES. 
 
 Offences committed on, 131, 132. 
 BREACH OF PEACE. 
 
 Arrest for, 53, 557. 
 
 Preventing, 53, 557. 
 
 Witnessing, 53, 557. 
 BREAKING PRISON. 
 
 Attempt to, 66. 
 BRIDGES. 
 
 Offences committed on, 131. 
 BRITISH COLUMBIA. 
 
 Criminal law of England in, 36. 
 
 Magistrates and Justices of the Peace in, 19, 20, 381, 382. 
 
 Gaols in, 313, 427. 
 
 Habeas corpus proceedings in, 458. 
 
 Certiorari proceedings in, 499. 
 
 Rules respecting same, 510, 524-526. 
 BRITISH NORTH AMERICA ACT OF 1867, 3, 4. 
 BRITISH SHIP. 
 
 All persons on, are amenable to British law, 169, 170. 
 BURGLARY. 
 
 Local description and time of day required to be set out in in- 
 formation or indictment, 126, 130. 
 CANADA EVIDENCE ACT, 538-549. (See Evidence.) 
 CANADA TEMPERANCE ACT. 
 
 See Liquor License Acts, cases under. 
 CAPACITY FOR CRIME. 
 
 Children under 7, 43, 44. 
 
 " between 7 and 14, 43, 44. 
 CAPTION. 
 
 To depositions, 207. 
 CARNAL KNOWLEDGE. 
 
 By boy under 14, 44. 
 CASE STATED. 
 
 On summary conviction, 350-357. 
 
 Forms respecting, 610-613. 
 
 Rules respecting, 531-533, 536, 537. 
 
 See STATED CASE. 
 CASE RESERVED. 
 
 On summary trials, Part XVI., 416-421.
 
 INDEX. 675 
 
 CATTLE. 
 
 Attempt to Kill or Injure, 66. 
 
 Killing, 50. 
 CERTIFICATE. 
 
 Of non-appearance to be endorsed on recognizance, form of, 593. 
 " previous conviction, 431. 
 
 Of dismissal of indictable offence, 183, 450, 451. 
 
 " summary conviction, 183, 184, 294, 296, 297. 
 " of assault, 296, 297. 
 
 Forms of certificate, summary conviction, 577. 
 
 " " summary trial, 587. 
 
 CEBTIORARI. 
 
 Nature of writ, 487. 
 
 General principles governing, 488, 489. 
 
 Difference from appeal, 488. 
 
 Taken away by statute, when granted nevertheless, 488-491, 494, 
 495. 
 
 Attorney-General may have as of course, 489-492, 511. 
 
 Where excess of, or no, jurisdiction, 488, 489, 490, 494, 495, 498. 
 
 Affidavit verifying proceedings, 490, 518. 
 
 What is open to review on, 224, 490. 
 
 Conviction bad on its face, 490. 
 
 Notice of application for, 488, 515-517. 
 
 Private prosecutor has same privileges as the Crown, 491. 
 
 Recognizance, 488, 491, 509-512. 
 
 Deposit as security, 509, 512. 
 
 Necessary before conviction quashed, 348, 349, 468, 469, 473, 483, 
 497. 
 
 Appeals from summary convictions, 492-497. 
 
 When appeal taken, no certiorari, 493. 
 
 Exceptions to this rule, 493. 
 
 Should be refused if right of appeal exists, 493. 
 
 Quebec, jurisdiction in, 496, 497. 
 
 When granted and when not, 497, 498, 499. 
 
 Second application for, after dismissal of first, 495. 
 
 Search warrant, 498. 
 
 Not proceeded with if appeal is pending, 498. 
 
 No discharge of prisoner without habeas corpus, 498. 
 
 Coroner's warrant, 498. 
 
 Ontario, new procedure in, 498. 
 
 British Columbia, procedure in, 499. 
 
 Quebec, jurisdiction in, 499. 
 
 Juvenile offenders, 499. 
 
 Convictions and warrants not void for irregularities, 499-504. 
 
 Powers of the Court in certiorari motions, 500. 
 
 Amending convictions on removal by, 501, 504-507. 
 
 Imposing less punishment, 502. 
 
 Imposing excessive punishment, 502, 504, 506. 
 
 Hearing appeal on merits, 502-504. 
 
 Court perusing depositions, 503, 504, 505, 506. 
 
 No fresh evidence taken, 503-506. 
 
 Weight of evidence not considered, 507, 508. 
 
 Costs against prosecutor, 508, 509.
 
 676 INDEX. 
 
 CERTIORARI Continued. 
 
 Security by recognizance or deposit, when required, 509, 512. 
 
 Issue of warrant of commitment after, 512, 519. 
 
 Ontario, Rules in respecting, 510, 511, 518, 519, 522, 523. 
 
 Nova Scotia, Rules in respecting, 510, 511, 514, 524. 
 
 British Columbia, Rules in respecting, 510, 511, 518, 524-526. 
 
 Saskatchewan, Rules in respecting, 526-530. 
 
 Alberta, Rules in respecting, 533-536. 
 
 English Crown Office Rules, 512, 516. 
 
 Enforcing recognizance, 512-514. 
 
 Practice, Statute of 13 George II., 514-517. 
 
 Application for, must be made within six months, 515. 
 
 Six days' notice must be served, 515-517. 
 
 Affidavit of service of notice, 516. 
 
 Requisites of the notice, 517. 
 
 Affidavits verifying proceedings, 518, 519. 
 
 Return of the writ, or order, for, 519, 520. 
 
 Proceedings on Court's refusal to quash, 520. 
 
 " when conviction is quashed, 520, 521. 
 
 Conviction will not be set aside for defect in form, 521. 
 
 Convictions under Part XVI., 521. 
 
 Forms relating to certiorari, 596-602. 
 CHALLENGE. 
 
 To the array, form of, 592. 
 
 " poll, form of, 593. 
 
 CHAMPERTY LAWS IN DIFFERENT PROVINCES, 36. 
 CHILD. 
 
 Capacity for crime, 43, 44. 
 
 Evidence of, 44, 204, 549. 
 
 Proof of age, 44. 
 
 Attempt to defile, 66. 
 CITY MAGISTRATES. 
 
 Jurisdiction of under sec. 777, 398-404. 
 CIVIL ACTION. 
 
 Certificate of dismissal of assault, bar to, 296. 
 CIVIL REMEDY. 
 
 Not suspended, 36, 37. 
 CLERICAL ERROR, 266, 424. 
 CLERK OF THE PEACE, 10, 12, 14, 230, 237. 
 COLLATERAL FACT. 
 
 One witness sufficient, 72. 
 COLOUR OF RIGHT, MEANING OF, 51. 
 COMMENCEMENT. 
 
 Of prosecution, 114. 
 COMMISSION. 
 
 To examine sick witness, 186, 187. 
 
 " witness out of Canada, 192. 
 
 Forms as to, 607-609. 
 COMMISSIONER. 
 
 Royal Northwest Mounted Police, 5. 
 
 To take evidence in foreign country, 192.
 
 INDEX. 677 
 
 COMMITMENT. 
 
 Warrant of, 223-225, 427. 
 
 Must be certain and definite, 427. 
 
 Amending a bad, 483, 484. 
 
 On surrender by bail, form of, 614. 
 
 Of witness refusing to give evidence, 193, 194. (See Warrant). 
 
 For contempt of Court, 193, 194, 249, 250. 
 
 For trial, 223, 224. 
 
 Of absconding witness, 226. 
 
 For want of distress, 304-306. 
 COMMON ASSAULT. . 
 
 (See Assault). 
 COMMON BAWDY HOUSE. 
 
 (See Bawdy House.) 
 COMMON BETTING HOUSE. 
 
 (See Betting House.) 
 COMMON GAMING HOUSE. 
 
 (See Gaming House.) 
 COMMON GAOL, 237, 313. 
 
 Manitoba and B. C., 313. 
 COMMON LAW. 
 
 Jurisdiction as to crimes still in force, 1, 36, 39, 42. 
 
 Justification or excuse for crimes, 41, 42. 
 COMPENSATION. 
 
 For loss sustained by offence, 436, 437. 
 
 To bona fide purchaser of stolen property, 437, 438. 
 COMPLAINT. 
 
 ' (See Information), 114-138. 
 
 Dismissing, 294, form of, 576. 
 
 Certificate of dismissal of, 294, form of, 577. 
 
 Of person threatened, for sureties, form of, 582. 
 
 Forms of, 558, 559. 
 COMPROMISE. 
 
 Proceedings on, 255, 256. 
 COMPULSION. 
 
 Of wife, 52, 539, 540. 
 CONFESSIONS. 
 
 And admissions, 214-220. 
 CONFISCATION. 
 
 Of moneys taken from prisoners, 436-441. 
 CONSENT TO PROSECUTION. 
 
 Although necessary, need not be alleged, 132. 
 
 When necessary, 132. 
 
 Contents of, 287. 
 CONSPIRACY. 
 
 To commit indictable offence, 67-71. 
 
 Definition of, 67. 
 
 Indictment, 68-70. 
 
 Extradition for, 70. 
 
 Trade combine, 70, 71. 
 
 Corporations, 70.
 
 678 INDEX. 
 
 CONSTABLE. 
 
 (See Arrest.) 
 
 Serving summons, 144, 148. 
 Assault upon, 149. 
 
 Executing warrant of arrest, 161-166, 556. 
 Using force in making arrest, 164-166, 556, 557. 
 Should have process with him, 162, 556. 
 Duties after arrest, 170, 171, 556. 
 Serving summons for witness, 186, 188. 
 Confessions made to, 217-220. 
 Fees under Part XV., 359. 
 
 Duties in executing warrant of commitment, 236. 
 Arresting without warrant, 555-557. 
 Receipt for prisoner by Justice, form of, 562. 
 " " gaoler, form of, 572. 
 
 Return to warrant of distress, form of, 580. 
 Forms of inventory and appraisement, 616. 
 Using handcuffs, 163. 
 Searching gaming houses, 389-391. 
 
 CONSTITUTIONAL LAW AND CASES, 4, 5, 38. 
 
 CONTEMPT OF COURT, 249, 250. 
 
 Conviction of witness for, form of, 564. 
 CONVICTION. 
 
 As a bar to further proceedings, 39-41. 
 
 Should be under seal, 92, 280. 
 
 Summary convictions, Part XV., 237-359. 
 
 Minute of, 269-272. 
 
 Drawing up, 272-276. 
 
 Defective, 267, 279, 285-288. 
 
 Must not charge disjunctively, 273. 
 
 " " in alternative, 273. 
 
 " be in respect of one offence, 134, 273, 275. 
 
 " specify particular act, 274-277. 
 Void for duplicity, 134, 274, 279. 
 
 multifariousness, 275. 
 For vagrancy, 275, 276. 
 Description of offence in, 277, 278. 
 Sums and quantities must be specified, 278. 
 For several offences, 279. 
 Imposing wrong penalty, 285. 
 
 Names of several offenders must be specified in, 280. 
 Where improper names are given, 280. 
 Name and style of magistrate must be given, 281. 
 Time and place must be specified, 281. 
 Negativing exceptions, 253, 282-284, 325. 
 Exception by way of proviso, 283. 
 
 Forfeiture of penalty must be adjudged, 284, 285, 433. 
 Excessive penalty, 285. 
 Difference between orders and, 288-290. 
 By two justices of the peace, 290. 
 Of joint offenders, 291. 
 Copy for defendant, 295.
 
 INDEX. 679 
 
 CONVICTION Continued. 
 
 Costs on conviction made, 298-303. 
 dismissal, 303, 311. 
 
 Recovery of costs, 303, 304. 
 
 Warrant of distress, 305-307. 
 
 Quashing for irregularity, 301, 499-502. 
 
 Appeal from summary, 320-350. (See Summary Convictions), 
 by stated case, 350-358, forms, 610-613. 
 
 Enforcement of, after case stated, 358. 
 
 Want of form, not quashed for, 428. 
 
 If no substantial wrong, not quashed, 421. 
 
 Bad on its face, 490. 
 
 Amending on appeal by certiorari, 49&-507. 
 
 Limitation of actions respecting, 551, 552. 
 
 Form of, for contempt, 564. 
 
 For penalty to be levied by distress, forms of, 572-574, 576. 
 " " and prison in default, form of, 573. 
 
 Repealed statute, under, 285, 286, 406. 
 
 By-law under, 288. 
 
 Release from first, on payment of damages, 291-294. 
 
 Punishment on convictions under sec. 773, 442-444. 
 
 Objections for matters of form, 342. 
 
 Quashing before action against magistrate, 91, 92. 
 
 " without proceeding by certiorari, 348, 349, 468, 469, 473, 
 
 483, 497. 
 " protection of magistrate from action, 472, 474, 482, 483. 
 
 For imprisonment only, form of, 573. 
 
 On Summary Trial, sec. 799, form of, 586. 
 
 " " plea of guilty, form of, 587. 
 
 Of juvenile offenders, form of, 588. 
 
 Removal by certiorari, 487-509. 
 CORONER. 
 
 Duties of, respecting inquisitions, 172-174. 
 
 Not "a Justice" within sec. 999, 173. 
 
 Warrant, form of, 617. 
 CORPORATIONS. 
 
 Summary convictions against, 150, 256. 
 
 Indictable offences, 150, 392. 
 
 Fine in lieu of prescribed punishment, 434. 
 
 CORROBORATION. 
 
 Required in treason, perjury, feigned marriage, forgery, &c., 71, 72. 
 
 Of evidence by infants, 44, 204, 549. 
 
 Generally, 204, 205. 
 CORRUPT ACTS. 
 
 By justices, peace officers, etc., 106. 
 COSTS. 
 
 Of action against justices of the peace, 101. 
 
 Security for, 13, 101, 102. 
 
 Of conviction, or order, 298-303. 
 
 Should be ordered to be paid to complainant, 303. 
 
 Excessive, 301, 302. 
 
 On dismissal, 303. 
 
 Recovery of, 304.
 
 $80 INDEX. 
 
 COSTS Continued. 
 
 Of conveying to gaol, 301-303. 
 
 Distress and commitment for, 311. 
 
 Payment of, 313. 
 
 Taxation of 300, 303. 
 
 On appeal, 349, 358. 
 
 Of prosecution In summary trials, 434-436. 
 
 Different modes of recovery, 434. 
 
 Imprisonment in default of payment of, 436. 
 
 In habeas corpus proceedings, 475, 484, 485. 
 
 " certiorari proceedings, 508, 509. 
 recognizance for, 509. 
 COUNSEL. 
 
 Exclusion from hearing, 195, 198, 199. 
 COUBT. 
 
 Meaning of, in Part XV., 237. 
 
 Trial, open Court, 248, 448. 
 
 Keeping order in, 248-250. 
 
 Contempt of, 249, 250. 
 
 of General Sessions of the Peace, 398. 
 COUNTS IN INDICTMENT, 127, 128, 422. (See Indictment.) 
 
 What included in term, 116, 130. 
 
 Are divisible, 116, 117. 
 COUNTY. 
 
 What it includes, 237. 
 COUNTY COUBT. 
 
 Appeals to, 320-327. 
 COUBT OF APPEAL, 417-421. 
 CRIME. 
 
 Locality of, 86-89. 
 
 Limitation of time for prosecution of, 550, 551. 
 CRIMINAL INFOBMATION. 
 
 Against justices of the peace, 102, 103. 
 CBIMINAL CODE. 
 
 Summary of its contents, 32, 33. 
 
 Procedure under, 1, 2, 32-53. 
 
 Application of, 34. 
 CRIMINAL CHARGE. 
 
 What included in expression, 38. 
 CRIMINAL LAW OF ENGLAND. 
 
 Application of, to Ontario, 34. 
 
 Quebec, 35, 36. 
 " Manitoba, 36. 
 
 British Columbia, 36. 
 CRIMINAL JURISDICTION. 
 
 In Canada, 3, 4. 
 CRIMINAL INTENT, 47-51. 
 CRIMINAL RESPONSIBILITY. 
 
 Insane persons, 44-47. 
 
 Infants, 43, 44. 
 
 Wives, 52. 
 CRIMINATING QUESTIONS, 543.
 
 INDEX. 681 
 
 CROWN. 
 
 Limitation as to debts to the, 243. 
 
 Practice rules respecting habeas corpus and certiorari, 518-530, 
 
 533-536. 
 Practice rules as to stated cases in Saskatchewan, 531-533. 
 
 Alberta, 536, 537. 
 
 CUMULATIVE PUNISHMENT, 312, 313, 426. 
 DAMAGES. 
 
 Payment of, on first conviction, 291-294. 
 DEAF MUTES. 
 
 Taking oath of, 205. 
 Evidence of, 205, 544. 
 DEATH OF JUSTICE, 151. 
 
 DEATH OF INFORMANT OR PROSECUTOR, 151, 288, 334. 
 DECEASED WITNESS. 
 
 Deposition of, 197, 213. 
 DEFAULTING WITNESS. 
 
 Warrant for, 190, 191. Form of, 563. 
 DEFECTS AND OBJECTIONS. 
 
 To informations, 133-138, 265-267. 
 
 " warrants, 133-138, 265-267. 
 
 " convictions, 133-138, 265-267, 273-276, 301. 
 
 Not to vitiate proceedings, 265-267, 301. 
 DEFENCE. 
 
 Witnesses for, 221. 
 
 Accused can make full answer and, 250, 448. 
 DEFENDANT. 
 
 Proceedings on non-appearance of, 154-155, 253-255. 
 
 Waiving irregularity by appearance, 151-153. 
 
 Leaving court room during trial, 152. 
 
 Is admitted to make full answer, 250, 448. 
 DELIRIUM TREMENS, 46. 
 DESCRIPTION OF OFFENCE, 132, 265, 276-278. 
 DEPOSITIONS, (See Evidence.) 
 
 Caption, or heading to, 207, 208. 
 
 Manner of taking, 207-210. 
 
 What they should contain, 208. 
 
 Must be read over and signed, 208, 211. 
 
 Connecting, 207. 
 
 Signature of justice to, 208. 
 
 When taken in shorthand, 209, 210. 
 
 Oath of stenographer, 210, 259. 
 
 Oath of interpreter, 209. 
 
 Witnesses for the defence, 221. 
 
 Copy of, who entitled to, 225. 
 
 Justice transmitting to Clerk of Peace, 230. 
 
 Need not be signed under Part XV., 258. 
 
 Nor taken in presence of accused, 258. 
 
 Authentication of, 209. 
 
 But must be in writing, 259. 
 
 Use of at trial in event of death, or illness, 213. 
 DESERTERS. 
 
 Arrest of suspected, 170.
 
 682 INDEX. 
 
 DESTRUCTION. 
 
 Of gaming instruments, 390. 
 Of liquors, 365. 
 DETENTION. 
 
 Persons arrested under section 652 not to be detained beyond noon 
 
 of following day, 555. 
 
 DIRECTORY OR IMPERATIVE REQUIREMENTS OF CODE. 
 Taking statement of accused, 211, 212. 
 
 Reading over depositions, 259. 
 
 Justice signing depositions, 259. 
 
 Taking down evidence in writing, 259. 
 
 Stenographer taking oath, 259. 
 
 Word " may " often means " shall," 262. 
 
 Provisions regulating appeals from summary convictions, 325. 
 
 Duties of justices as to stating cases, 353. 
 DISCHARGE. 
 
 From gaol, 313, 317. 
 
 After preliminary inquiry, 178, 182. 
 DISAGREEMENT OP JUSTICES, 184. 
 DISCRETION. 
 
 Rule as to exercise of, 241. 
 
 Judicial, to be based on evidence, 251. 
 
 Of Justices as to adjournment, 257. 
 DISMISSAL. 
 
 As a release, 37. 
 
 Order for, 183. 
 
 Of complaint, 184. 
 
 Certificate of, 294, 296. 
 
 Of charge by magistrate, 450. 
 
 Certificate of, 450. 
 
 Forms of, in summary convictions, 576, 577. 
 
 trials, 587, 588. 
 DISORDERLY HOUSE. 
 
 Keeping a, 388, 392-397, 443, 444. 
 
 Provincial legislation as to, ultra vires, 38. 
 
 Punishment for keeping a, 443. 
 
 What included in, 388, 394. 
 
 Frequenting, 396. 
 
 Inmate of, 394. 
 
 Evidence to prove, 396. 
 
 House of ill-fame, 393-396. 
 
 Gaming house, 388-393. 
 
 Opium joint, 388-391, 393. 
 
 Search in and warrant for, 389-391. 
 
 Powers of magistrate as to examination, 390. 
 
 Absolute jurisdiction of magistrate, 392-397. 
 DISQUALIFICATION. 
 
 Of Magistrate and Justice by reason of interest, or bias, 77-82. 
 DISTRESS. 
 
 Minute of order, before, 290, 294, 295. 
 
 Warrant of, 304-307, 309-313. 
 
 Insufficient, 306. 
 
 Backing warrant of, 305.
 
 INDEX. 683 
 
 DISTRESS Continued. 
 
 For costs against prosecutor, 311, 312. 
 
 Forms relating to 
 Bailiffs' inventory, 616. 
 Appraisement, 616. 
 Order for payment of money, 574. 
 
 Warrant, 577, 578, 581, 585. 
 
 Indorsement on, form of, 582. 
 DISTRICT. 
 
 Meaning of, 237. 
 DISTRICT MAGISTRATES. 
 
 In Quebec, 15. 
 DOCUMENTS. 
 
 Production of, 188. 
 DRUNKENNESS, 45, 46. 
 DUPLICITY. 
 
 Conviction void for, 134, 274, 279. 
 DWELLING HOUSE. 
 
 Entering at night, 130. 
 
 Setting fire to a, 130. 
 ELECTION. 
 
 Of accused on summary trial, 407-410. 
 ENDORSEMENT OF WARRANT. 
 
 (See Backing warrants), 167, 168. 
 
 Distress warrant, 305. 
 
 Forms for, 559, 582. 
 
 ENGLAND, CRIMINAL LAW OF. See Criminal Law of England. 
 ESCAPE. 
 
 Pursuit of prisoner, 166, 555, 557. 
 ESTOPPEL. 
 
 Because of civil action pending, 37. 
 
 Conviction operates as, 39, 40. 
 ESTREAT OF RECOGNIZANCE, 236. 
 EVIDENCE. (See Depositions and Witnesses.) 
 
 Admissibility of, 208, 538-542. 
 
 Of child, 44, 204, 549. 
 
 Must support charge by material facts, 128, 268. 
 
 On preliminary inquiry, 178-184, 201-205. 
 
 On summary trials, 414. 
 
 Must be taken in presence of justice, 181, 201. 
 " " " accused, 188, 201. 
 
 Taking of, under commission, 192, 193. Forms, 607-609. 
 
 To prove intent, 49, 421. 
 
 Of other similar acts to prove motive or intent, 541. 
 
 What facts are relevant, 194, 541, 542. 
 
 Production of documents, 188. 
 
 Nature of oath, 201-203. 
 
 Corroborative, when required, 71, 72, 204, 205, 549. 
 
 Taking through interpreter, 209. 
 by shorthand, 209, 210. 
 
 Statement of accused, 211-214. 
 
 Confessions and admissions, 214-220.
 
 '684 INDEX. 
 
 EVIDENCE Continued. 
 
 Statements, part of the res gestae, admissible, 220. 
 
 Taking, in summary convictions, 257-259. 
 
 Deponent need not sign, 258. 
 
 Must be taken as required by law, 258, 259. 
 
 Competent witnesses, 538, 539. 
 
 Husband and wife, 206, 539, 540, 542. 
 
 Of accused himself, 539, 540, 541. 
 
 Cross-examination of accused, 540, 541. 
 
 Depositions at coroner's inquest, 172, 541. 
 
 as evidence at trial on death of witness, 213. 
 
 Of co-defendants, 540, 541. 
 
 Marriage communications, 542. 
 
 Of deaf mutes, 205, 544. 
 
 Incriminating questions, 543. 
 
 Foreign, expert, and adverse witnesses, 544-546. 
 
 Handwriting, proof of, 545. 
 
 Impeaching witnesses, 546. 
 
 Cross-examination as to previous statements and convictions, 547, 
 548. 
 
 Oaths and affirmations, 548, 549. 
 
 Judicial notice, 406, 549. 
 EVIDENCE ACT, 201, 203-205, 538-549. 
 EXAMINATION. 
 
 Of witnesses on preliminary inquiry, 181, 201-205. 
 " summary convictions, 257-259. 
 
 trials, 414. 
 EXCEPTIONS AND PROVISOES. 
 
 Negativing, 253, 282-284, 325. 
 EXCESSIVE FORCE. 
 
 In making arrests, 164, 556, 557. 
 EXCESSIVE PUNISHMENT. See Punishment. 
 EXCLUSION. 
 
 Of persons from hearing, 198, 199. 
 
 " witnesses from hearing, 206, 264. 
 EXECUTION. 
 
 Of warrant of arrest, 161-166. 
 
 Using force in execution of warrant, 163-165, 556, 557. 
 EX-OFFICIO. 
 
 Justices of the Peace, who are, 5. 
 Ex PARTE. 
 
 Proceeding on non-appearance of defendant, 246, 254. 
 EXPENSES. 
 
 Of prosecution, 434. 
 EXTRADITION. 
 
 Bail in, 234. 
 
 Habeas corpus proceedings in, 467, 468, 470, 475, 478. 
 FACTS. 
 
 Necessary to be set out in indictments, 128-131. 
 " " support charge, evidence of, 128. 
 
 Relevant, what are, 194, 541, 542. 
 FALSE NAME. (See Name.)
 
 INDEX. 685 
 
 FALSE PRETENCES. 
 
 Information for, 120. 
 
 Summary trial for, 383, 440, 442. 
 FEES IN SUMMARY CONVICTION CASES.. 
 
 To constables, 359. 
 
 To interpreters, 359. 
 
 To justices, 13, 358, 359. 
 
 To witnesses, 359. 
 FEES. 
 
 Exaction of unauthorized, by magistrates, 105, 106, 107. 
 
 None payable to magistrate on preliminary inquiry, 182. 
 
 In summary trial cases, 435. 
 FELONY AND MISDEMEANOUR. 
 
 Distinction between abolished, 2, 38, 114. 
 FENCES. 
 
 Question as to line, 83. 
 FIERI FACIAS. 
 
 Form of writ of, 594. 
 FINES. 
 
 If no mode prescribed for recovery, may be recovered by civil ac- 
 tionSec. 1038434. 
 FINES AND FORFEITURES, 284, 285, 433. 
 
 In discretion of the Court, 307, 433. 
 
 Payment and discharge, 313. 
 
 In lieu of imprisonment, 434. 
 
 Corporations may be fined, 434. 
 FIBST OFFENDERS. 
 
 First conviction and payment of damages, 291-294. 
 
 Suspending sentence, .429-431. 
 FORCE. 
 
 Constable may use reasonable in making arrests, 163, 164, 556, 557. 
 FORCIBLE ENTRY, 130, 548. 
 FORCIBLY PREVENTING. 
 
 Breach of peace, 557. 
 
 Commission of crime, 555. 
 
 Escape from or after arrest, 557. 
 FOREIGNERS. 
 
 Evidence given by, 201, 202, 544. 
 FORFEITURE. 
 
 Of penalty must be adjudged in the conviction, 284, 285, 433. 
 FORMER CONVICTION, 429-431. 
 FORMS. 
 
 Statutory under the Code, 1 to 76, 558-595. 
 
 APPENDIX " A." 
 
 In certiorari proceedings, 596-602. 
 " habeas corpus proceedings, 603-607. 
 " evidence under commission, 607-609. 
 Witness dangerously ill, 607, 608. 
 
 out of Canada, 609. 
 Stating case under sec. 761, 610-613. 
 Apprehension of person on bail, 613. 
 Commitment on surrender by bail, 614.
 
 686 INDEX. 
 
 FORM s Con tinned. 
 
 Application for subpoena for witness in Canada out of the Pro- 
 vince, 615. 
 
 Affidavit of service of subpoena, 616. 
 Proceedings under distress warrant. 
 Bailiff's inventory, 616. 
 " appraisement, 616. 
 " notice of sale, 617. 
 Coroner's warrant, 617. 
 APPENDIX " B." 
 
 Statements of offences in numerical order with the sections of 
 
 the Criminal Code, 618-668. 
 FREQUENTING. 
 
 Bawdy houses, 392-394. 
 (See Vagrants.) 
 FUGITIVE OFFENDERS. 
 
 Habeas corpus as to, 475. 
 FUNCTUS OFFICIO. 
 
 Magistrate is, after committal, 224, 230. 
 GAMING HOUSE. (See Disorderly House.) 
 Searching by officers, 389-391. 
 Examination of persons found in, 390. 
 Prima facie evidence of, 391. 
 Destruction of instruments, 390. 
 GAOL. 
 
 Meaning of, 237. 
 
 Costs of conveying prisoner to, 300-303. 
 Commitment to, 300, 313, 427. 
 In Manitoba and British Columbia, 313, 427. 
 GASPE DISTRICT. 
 
 Naval officers ex officio Justices of the Peace in, 14. 
 GIRLS. 
 
 Searching for in house of ill-fame, 389. 
 GOOD IN PART AND BAD IN PART. 
 Convictions cannot be, 290. 
 Orders may be, 290. 
 GOODS. 
 
 Restitution of stolen, 438-441. 
 GRIEVOUS BODILY HARM, 383. 
 GUILTY. 
 
 Plea of, 260. 
 
 Form of conviction on plea of, 588, 589. 
 HABEAS CORPUS. 
 
 Origin of the writ, 456. 
 
 Ad testificandum, 456. 
 
 Ad subjiciendum, 456, 457. 
 
 Introduction into Canada, 457. 
 
 Statute of Charles II., 457. 
 
 George III., 457, 458. 
 
 Supreme Court of Canada, jurisdiction in, 458, 459. 
 Practice and procedure respecting, 460-463. 
 Affidavit on application for, 460, 461, 462.
 
 INDEX. 687 
 
 HABEAS CORPUS Continued. 
 
 Application for, how made, 461, 462, 463. 
 
 Any stranger may apply, 462. 
 
 Married women and minors entitled to, 463. 
 
 Direction and service of writ, 463, 464. 
 
 How writ signed, marked and issued, 464. 
 
 Return to be made to the writ of, 465, 466, 468. 
 
 Impeaching the return, 466. 
 
 Original warrant of commitment required, 468. 
 
 Recognizance on remand, 467. 
 
 Quebec, practice in, 467, 474, 476, 480. 
 
 Amending return to, 468, 469. 
 
 Not sufficient to quash conviction without certiorari, 468, 469, 473, 
 483, 497. 
 
 Will not lie after appeal from summary conviction, 469. 
 
 Fresh arrest pending proceedings, 470. 
 
 In extradition proceedings, 467, 470, 473, 475, 478, 479. 
 
 Is not an appeal, 471. 
 
 Discharge without actual issue of writ, 471. 
 
 As to County Judges Criminal Courts, 471, 472. 
 " magistrates in cities, 472, 483, 484. 
 
 Discharge of prisoners upon, 472, 473. 
 
 Discharge generally no bar to further prosecution, 473. 
 
 Order protecting gaoler and magistrate, 472, 474. 
 
 Applications to successive Judges, 474. 
 
 Appeal from Judge's order, 474, 479, 480. 
 
 In relation to fugitive offenders, 475. 
 
 Extradition proceedings, bail in, 475. 
 
 Costs against stranger to proceedings, 475. 
 
 Necessary before release of prisoner, although conviction bad, 424. 
 
 Cases on jurisdiction and practice generally, 476-478, 481, 482. 
 
 Ontario, practice in, respecting, 480. 
 
 Detention of prisoner after application for, 480. 
 
 Amending bad commitment on, 481, 483, 484. 
 
 Certiorari in aid of, 482, 484. 
 
 Order protecting magistrate, 482, 483. 
 
 Will lie after conviction on summary trial, 396, 404. 
 
 Arrest on telegram, 160, 470, 483. 
 
 Acting magistrate, 484. 
 
 Costs of proceedings, 484, 485. 
 
 Irregularities in application for, 485. 
 
 New Brunswick, jurisdiction in, 485, 518. 
 
 Nova Scotia, jurisdiction in, 485, 518. 
 
 Manitoba, jurisdiction in, 458. 
 
 Saskatchewan, jurisdiction in, 458, 486, 528. 
 
 Alberta, jurisdiction in, 458, 486, 535. 
 
 British Columbia, jurisdiction in, 458, 518. 
 
 Yukon Territory, jurisdiction in, 458. 
 
 North-West Territories, 458. 
 HANDCUFFING. 
 
 Prisoner on arrest, 163.
 
 688 INDEX. 
 
 HANDWRITING. 
 
 Accused not required to furnish specimen, 212, 545, 546. 
 
 Proof of, 545. 
 HARD LABOUR. 
 
 Adjudging on conviction, 305, 308. 
 
 Imprisonment with, 308, 425. 
 HIGH SEAS. 
 
 Admiralty jurisdiction on, 169. 
 
 Offences committed on, 169. 
 HOLIDAYS. 
 
 Statutory, Sundays, etc., 167. 
 
 Warrants may issue and be executed on, 161, 162, 167. 
 
 Information may be taken on, 167. 
 HOUSE. 
 
 Entering to make arrests, 164-166. 
 
 Breaking into, description of, required in informations and indict- 
 ments, 130. 
 
 Of ill-fame. (See Disorderly House.) 
 
 Bawdy. (See Disorderly House.) 
 HUSBAND AND WIFE. 
 
 Compulsion of wife, 52, 539. 
 
 Crime committed in husband's presence, 52. 
 
 Protection of wife, 52. 
 
 Wife as accessory, 52, 62, 63. (See Evidence.) 
 IDIOCY, 44-47. 
 IGNORANCE OF THE LAW. 
 
 Is no excuse, 49, 53. 
 ILL-FAME. 
 
 House of. (See Disorderly House.) 
 IMPRISONMENT. 
 
 In default of payment or distress, 304, 305, 307. 
 
 In the first instance, 308. 
 
 With hard labour, 308, 425. 
 
 In addition to fine, 309. 
 
 Cumulative punishment, 312, 313, 426. 
 
 In penitentiary, 426, 427. 
 " common gaol, 300, 313, 427. 
 " reformatory, 427. 
 
 (See Gaol.) (See Punishment.) 
 INCITING WITNESS TO GIVE DESIRED EVIDENCE, 42. 
 INDECENT ASSAULTS, 383, 443. 
 INDIANS. 
 
 Selling liquor to, 51. -* 
 
 INDICTABLE OFFENCES, 2. 
 
 Triable on summary conviction, 114. 
 
 Distinction between, and offences on summary conviction, 116. 
 
 On non-appearance of accused, trial cannot go on, 154. 
 
 Summary trials of, 380-453. 
 INDICTMENT. 
 
 Stating time of offence in, 127, 130. 
 
 Stating place of offence in, 128-131. 
 
 Provision as to counts in, 127, 128, 415, 422.
 
 INDEX. 689 
 
 INDICTMENT Continued. 
 
 What counts in, should contain, 127, 128, 129, 135. 
 
 Count and, include information, 116, 130. 
 
 Must allege all essential ingredients of offence, 135. 
 
 For common assault, 295. 
 
 Headings, forms of, 590. 
 
 Examples of stating offences, 590, 616-668. 
 
 Certificate of being found, form of, 591. 
 INFANTS. (See Child.) 
 
 Sections 17 and 18 of the Code, 43, 44. 
 
 Evidence by, 44, 204, 549. 
 
 Corroboration required, 44, 204, 549. 
 
 Proof of age, 44. 
 
 Responsibility of, 43, 44. 
 INFORMATION AND COMPLAINT. 
 
 Distinction between, 114. 
 
 Is groundwork of conviction, 114, 117. 
 
 In indictable offences, 114-138. 
 " summary convictions, 115, 238, 242, 243. *N 
 
 Must be under oath for warrant to issue, 115, 149, 156. 
 
 Discretion of justice as to receiving, 115. 
 
 " Count " includes information, 116, 117, 130. 
 
 " Charge " includes information, 116, 117. 
 
 In nature of indictment, 117, 130. 
 
 Laying of, 117, 142-144, 167, 238, 245, 246. 
 
 Who may be informant, 117. 
 
 Required contents of, 117, 185, 245, 246. 
 
 Must be in writing and under oath, 118. 
 
 Waiver of, on preliminary inquiry, 119, 151. 
 
 For false pretences, 120. 
 
 Legal construction of language of, 120. 
 
 What it should contain, 120-138. 
 
 Name and occupation of informant, 121. \_ 
 
 Day, year and place where taken, 122. 
 
 Taking of is a judicial act, 123, 125, 167. 
 
 Description of justice receiving, 125. 
 
 Name of offender must be stated in, 126, 157, 185. 
 
 Place and time of commission of offence, 126, 127, 129-131. 
 
 Statement of the offence, 132, 133-138. 
 
 Duplicity in, 134. 
 ^ Defects in and objections to, 133-138, 265. 
 
 Particulars, furnishing of, 118, 133, 184, 415, 416. 
 . More than one offence not to be charged in, 133, 134, 135, 251. 
 
 Charging several matters in the alternative, 134, 185, 186, 246. 
 
 Concise and legal description required in, 135. 
 
 Essential ingredients constituting offence, 133, 135-138. 
 
 Complaint on information and belief, 144. 
 
 Receiving, 142-144. 
 
 May be laid on Sunday, or statutory holiday, 167. 
 
 Variance between warrants and, 185. 
 
 Amendments to, 122, 134, 185, 245, 246, 255. 
 
 C.C.P. 44
 
 690 INDEX!! 
 
 INFORMATION AND COMPLAINT Continued. 
 
 Limitation of time for laying, in summary convictions, 243, 551. 
 
 Exceptions and exemptions in summary convictions, 253, 282-284, 
 325. 
 
 Forms of: 
 
 To obtain search warrant, 558. 
 
 For an indictable offence, 559. 
 
 Order dismissing, 576. 
 
 Certificate of dismissal, 577. 
 
 Statements of offences in, see Forms, Appendix " B," 618-668. 
 
 Vagrancy, for, forms of, 629. 
 INLAND LAKES. 
 
 Offences on, 132. 
 
 Admiralty jurisdiction over, 132, 169. 
 INQUIRY. 
 
 Preliminary, in indictable offences, 176-236. 
 INQUISITION. 
 
 Coroners, 172-174. 
 INSANITY. 
 
 Code, section 191, 44-47. 
 
 Intoxication, 45, 46. 
 
 Delirium tremens, 46. 
 
 Remand by magistrate, 47, 184, 195. 
 
 Medical testimony, 46, 47. 
 
 As a defence, 46, 47. 
 
 Duty of grand jury respecting, 46. 
 INTENT. 
 
 Mens rea, 47. 
 
 When necessary to prove, 48. 
 
 Statutes dispensing with proof of, 48. 
 
 Of servant not imputed to master, 48. 
 
 In bigamy cases, 49. 
 
 Evidence of similar acts to prove, 49, 421. 
 
 But not to prove propensity to crime, 49. 
 
 Fraudulent packing of apples, 49. 
 
 " Knowingly " implies mens rea, 49. 
 
 Sale of liquor to interdict, 50. 
 
 Omission to perform a statutory duty, 50. 
 
 Colour of right, meaning of, 51. 
 
 Verdict of guilty without, 50, 423. 
 INTERPRETER. 
 
 Competency of, 424, 544, 545. 
 
 Should be sworn, 209. 
 
 Oath of, 209. 
 
 Fees under Part XV. of the Code, 359. 
 INTOXICATION, 45, 46. 
 IRREGULARITY. 
 
 Waiver of, in information, 151. 
 
 Summons, warrant, etc., 152, 153. 
 
 And variances in warrant, etc., 185, 265, 266. 
 
 In conviction, quashing for, 301, 499-502.
 
 INDEX. 691 
 
 JOINT OFFENDERS. 
 
 Conviction of, 244, 291. 
 
 Partners as, 291. 
 JUDGMENT. (See Adjudication.) 
 
 Not to be given without proof of facts under oath, 267-269. 
 JUDGES. 
 
 Appointment of, 3. 
 
 Of Superior Courts, 3. 
 
 Of County Courts, 3. 
 
 Of Probate in N. B. and N. S., 3. 
 
 Of Supreme Court of Canada, 3. 
 
 De 'facto, 9. 
 
 JUDICIAL DISCRETION, 251, 262. 
 JUDICIAL ACTS. 
 
 Of justices of the peace, 73, 74, 90, 123, 125, 144, 167. 
 JUDICIAL NOTICE. 
 
 Of Acts of Parliament, 549. 
 
 Of census returns, 406. 
 JURISDICTION. 
 
 Of police magistrates, 75, 76. 
 
 Of justices of the peace, 73-76, 238-242. 
 
 Ministerial acts, 74, 125, 299, 428. 
 
 Judicial acts, 73, 74, 90, 123, 125, 144, 167. 
 
 Cases when not acquired by magistrates, 120, 140, 142, 146, 147, 148, 
 
 152, 155, 159, 238. 
 
 Does not depend on truth of complaint, j.43. 
 Must appear on face of proceedings, 129. 
 Generally, 73-89. 
 
 Provisions of Code as to, 125, 126. 
 Magistrate acting without, 124. 
 Magistrate acting in excess of, 123. 
 
 Police Magistrate of one town acting for P. M. of another town, 75. 
 When magistrate called as witness in the case, 76. 
 To proceed when arrest illegal, 119, 120, 159, 238, 252. 
 Of admiralty on inland lakes, 132. 
 " justices where offence committed on tidal, or other waters, or 
 
 bridges, or boundaries of counties, or towns, 131, 132. 
 A sufficient information gives, 141. 
 Justice in absence of accused has none, unless summons served, 
 
 153, 154. 
 
 Offences committed out of, 131, 169, 171, 172. 
 
 In Summary Convictions, Part XV., 238-242. 
 
 Trials, Part XVI., 383-387, 392-406. 
 
 Of general and quarter sessions, 402. 
 JURY. 
 
 Challenge to array, form of, 592. 
 
 poll, form of, 593. 
 JUSTICES OF THE PEACE. 
 
 Appointment of, 5. 
 
 Creation of office of, 6. 
 
 In England, 6. 
 
 Property qualification of, 6, 7. 
 
 Other qualifications, 75.
 
 692 INDEX. 
 
 JUSTICES OF THE PEACE Continued. 
 Ontario, in, 8-13. 
 
 Oath of office, 8. 
 
 qualification, 8, 75. 
 " allegiance, 9. 
 
 Returns by, 10. 
 
 Vexatious actions against, 12. 
 
 Security for costs in, 13. 
 
 Fees to be charged by, 13, 358, 359. 
 Quebec, in, 13-16. 
 
 Oath of office, 14. 
 
 Oath of qualification, 14, 75. 
 
 Appointment of, 13, 14. 
 
 Jurisdiction of naval officers, 14. 
 
 " " justices over whole Province, 14. 
 
 To keep registers, 14. 
 " make quarterly returns, 14. 
 Nova Scotia, in, 16, 17. 
 New Brunswick, in, 18. 
 Prince Edward Island, in, 19. 
 British Columbia, in, 19, 20. 
 Manitoba, in, 21-23, 75. 
 Saskatchewan, in, 24, 25. 
 Alberta, 26, 27. 
 North-West Territory, 27, 28. 
 Yukon Territory, 28, 29. 
 Unorganized Territory, 29. 
 Royal North-West Mounted Police, as, 30. 
 Oath of allegiance, 30. 
 Jurisdiction of. See Jurisdiction. 
 Territorial limits, 73, 125, 131, 169, 239, 240. 
 Ministerial acts, 74, 125, 299, 428. 
 Judicial acts, 73, 74, 90, 123, 125, 144, 167. 
 Two justices, 74, 76, 238-241. 
 -^ When one justice may act, 42, 125, 238, 241. 
 Sitting in absence of police magistrate, 75, 85. 
 Acts of, when not qualified, 75. 
 Single, asking others to sit with him, 84. 
 Disqualification of, by bias or interest, 77-82. 
 Ouster of jurisdiction, title to land, 82-84, 241, 242. 
 Associate justices and priority, 84-86, 184. 
 Interference by outside justices, 84, 85, 184. 
 Authority to two cannot be exercised by one, 76. 
 Two justices should be present throughout the hearing, 86, 184, 
 
 196, 240, 241. 
 Responsibility of, 90-113. 
 Vexatious actions against, 12, 23, 91-102. 
 Excess of jurisdiction, 91, 123. 
 Issuing warrant without jurisdiction, 93. 
 Protection of, 94, 428, 429, 482, 483. 
 Powers as to preserving order in court, 248-250. 
 Compelling performance of duties, 95, 96, 107-110, 141, 177. 
 Time limitation for actions against, 97, 551, 552.
 
 INDEX. 693 
 
 JUSTICES OF THE PEACE Continued, 
 
 Notice of action, 97-100. 
 
 Tender of amends, 101, 551, 552. 
 
 Costs of action, 101. 
 
 Security for costs, 101, 102. 
 
 Criminal information against, 102, 103. 
 
 Return of convictions, 103-105. Form of, 594. 
 
 Unauthorized fees, taking, 106, 107. 
 
 Corrupt action on part of, 106. 
 
 Mandamus and prohibition against, 107-113. 
 
 Meaning of word " Justice," 106, 107. 
 
 No fees to be charged by, in indictable offences, 107. 
 
 Description of, should appear in information, 125. 
 
 Tidal and other waters, jurisdiction on, 131. 
 
 Duty to hear witnesses before issuing warrant, 143, 144. 
 
 May exercise discretion as to issuing warrant, 143, 144. 
 
 Duties on preliminary inquiry. See Preliminary Inquiry. 
 
 Summary Convictions, Part XV. See Summary Convictions. 
 
 Summary Trials of indictable offences by magistrate, or two jus- 
 tices. See Summary Trials. 
 JUSTIFICATION OR EXCUSE, MATTERS OF, 41, 42. 
 JUVENILE OFFENDERS, 453-455. 
 KEEP THE PEACE. 
 
 Sureties to, 314-319, 441, 442. 
 KNOWINGLY. 
 
 Omission of word when necessary is fatal, 508. 
 
 Intent, mens rea, 47-50. 
 LABOUR DAY. 
 
 Statutory holiday, 167. 
 LAKES. 
 
 Inland, offences committed on, 132. 
 
 Admiralty, jurisdiction over, 132, 169. 
 LAND. 
 
 Title to, in question, 82-84, 241, 242. 
 LARCENY. 
 
 Term no longer used, 2. 
 LAW. 
 
 Ignorance of, no excuse, 53. 
 LETTERS. 
 
 Threatening to burn or destroy building, 317. 
 LIMITATION OF ACTIONS. 
 
 Against officials, 551, 552. 
 
 For penalties, 551, 552. 
 LIMITATION OF TIME. 
 
 For commencing prosecutions of criminal offences, 123, 124, 550, 
 551. 
 
 In summary convictions, 123, 124, 243, 551. 
 
 Amending information after expiration of time limited, 122. 
 LIQUOR LICENSE ACTS, CASES UNDER. 
 
 Amendment of convictions, 360, 361. 
 " " informations, 360, 361. 
 
 Amount of fine, 361. 
 
 Brewer's license, 361.
 
 694 INDEX, 
 
 LIQUOR LICENSE ACTS, CASES UNDER Continued. 
 
 Certiorari, 361, 362. 
 
 Deposit as security in, 362. 
 
 Change of territory under Canada Temperance Act, 362. 
 
 Clubs, 362. 
 
 Concurrent legislative powers, 362. 
 
 Conviction for second or third offence, 363. 
 Proof of previous conviction, 363-365. 
 
 Destruction of liquors, 365. 
 
 Evidence, 365-367. 
 
 Hotel not a public place, 367. 
 
 Illegal disposition of liquor, 367. 
 
 Imprisonment on default, 367. 
 
 Information, sufficiency of, 368. 
 
 Keeping liquor for sale, 367, 368. 
 
 Limitation of time for prosecution, 368. 
 
 Manitoba, prosecutions in, for second and third offences, 363. 
 
 Minors, sale to, 368, 369. 
 
 Occupant of premises, liability of, 369. 
 
 Physicians, sales by, 369. 
 
 Place of offence, 369, 370. 
 
 Previous conviction, 363-365. 
 
 Restaurant keeper procuring liquor for guest, 370. 
 
 Sale or disposal, what amounts to, ' 370. 
 
 Sale In larger quantities than license permits, 371. 
 
 Sale in Local Option district, 371. 
 
 Sale of sacramental wine, 371. 
 
 Sale on a doctor's certificate, 371. 
 
 Search warrant, 371, 372. 
 
 Summons as for second offence, 372. 
 
 Suspending sentence, 372. 
 
 Two bars, 372. 
 
 Uncertainty as to date of offence, 373. 
 LOCALITY. 
 
 Of crime or offence, 86-89, 128-131. 
 LOCAL DESCRIPTION. 
 
 Required to be set out in information or indictment, in certain of- 
 fences, 128-131. 
 
 LOOSE, IDLE AND DISORDERLY PERSON. (See Vagrant.) 
 LORD'S DAY ACTS. See Sunday Observance Laws. 
 LUNACY. (See Insanity.) 
 
 MAGISTRATES. (See Justices of the Peace and Police and Stipendiary 
 Magistrates.) 
 
 Appointment of, 5-29. 
 
 meaning of " magistrate " in the different Provinces, 381, 382. 
 
 Jurisdiction absolute in certain Provinces and Territories over 
 certain offences, 397. 
 
 Compelling performance of duties, 95, 96, 107-110, 141, 177. 
 
 Disqualification by bias, or interest, 77-82. 
 
 Vexatious actions against, 12, 23, 91-102. 
 
 Returns of convictions by, 103-105. 
 
 Mandamus and prohibition against, 107-113, 141. 
 
 Preliminary inquiry, duties in. See Preliminary Inquiry.
 
 INDEX. 695 
 
 MAGISTRATES Continued. 
 
 Summary trials. See Summary Trials. 
 
 Jurisdiction of. See also Jurisdiction. 
 
 Jurisdiction absolute in offences respecting disorderly houses, 392- 
 396. 
 
 Seafaring persons, 397. 
 
 Order protecting on quashing conviction, 482, 483. 
 MAINTENANCE. 
 
 Indictable in Ontario, 36. 
 MALICE AND MALICIOUSLY. 
 
 Use of Words, discontinued, 2. 
 MANDAMUS. 
 
 Compelling performance of duties by magistrate, 95, 96, 107-110, 
 141, 177, 195. 
 
 Writ of, abolished in Ontario and Manitoba, 107. 
 
 To have appeal reopened, 505. 
 MANITOBA. 
 
 Justices of the Peace and Magistrates in, 21-24, 381, 382. 
 
 Gaols in, 313, 427. 
 
 Criminal Law of England in, 36. 
 
 Application of Criminal Code in, 23. 
 
 Liquor License law in, 363. 
 
 Recovery of fines and penalties in, 23. 
 MARKET OVERT. 
 
 Sale of stolen property in, 439, 440. 
 MASTER AND SERVANT, 95. 
 MARRIED WOMAN. (See Husband and Wife.) 
 
 Conviction of, 244. 
 MEETINGS. 
 
 Unlawful assemblies, 55-56. 
 
 Riots, 56-58. 
 MENS REA. 
 
 Intent, " knowingly," " wilfully," 47-51. 
 MERCY. 
 
 Royal prerogative of, 309. 
 MINISTERIAL ACTS. 
 
 Of justices, 74, 125, 299, 428. 
 MINORS. (See Infants.) 
 MINUTE OF CONVICTION, 269-272, 343, 404. 
 MINUTE OF ORDER. 
 
 To be served, 294, 295. 
 MISCHIEF. 
 
 Title to land in question, 83, 84. 
 MISDEMEANOUR AND FELONY. 
 
 Distinction between abolished, 2, 38, 114. 
 MISTAKE IN NAME OF OFFENDER, 157, 185, 280, 281, 473. 
 MOTION. (See Appeal Habeas Corpus and Certiorari.) 
 
 MULTIFARIOUSNESS. 
 
 Conviction bad for, 275. 
 NAME. 
 
 If not known, describe person, 126, 280. 
 
 Of party to be arrested should appear in warrant, 156, 157. 
 
 Of person injured, 126, 137.
 
 696 INDEX. 
 
 NAME Continued. 
 
 Mistake in name, 157, 185, 280, 281, 473. 
 
 Of several offenders must be specified in conviction, 280. 
 
 Improper, given by offender, 280. 
 
 And style of magistrate must be specified in conviction, 281. 
 NAVAL OFFICEBS. 
 
 Ex-offlcio Justices of the Peace, 14. 
 
 May arrest without warrant, 555. 
 NEGATIVING. 
 
 Exceptions and provisos, 282-284, 325. 
 NEW BRUNSWICK. 
 
 Actions against justices in, 101. 
 
 Justices of the Peace and Magistrates in, 18. 
 
 Jurisdiction of Courts in habeas corpus, 485, 518. 
 NEW TRIAL. 
 
 Application for, after conviction, 418-420. 
 
 By order of Minister of Justice, 421. 
 NIGHT. 
 
 Arrests for offences committed in, 555, 556. 
 NON-APPEARANCE OF ACCUSED. 
 
 On proof of service of summons, warrant may issue, 154. 
 
 Justice cannot proceed with preliminary inquiry on, 154. 
 
 Does not affect proceedings in summary conviction trials, 154, 253- 
 255, 258, 262. 
 
 When he is on bail, 261. 
 NON-APPEARANCE OF PROSECUTOR, 255, 261. 
 NORTH-WEST MOUNTED POLICE. 
 
 As Justices of the Peace, 30. 
 NORTH-WEST TERRITORIES. 
 
 Act relating to, 27, 28. 
 
 Magistrates, in, 28. 
 
 Justices of the Peace, in, 27-28. 
 NOT GUILTY. 
 
 Plea of and request for adjournment, 262. 
 NOTICE. 
 
 Of actions against Justices, 97-100, 551. 
 
 " appeal, 329-334. 
 
 " application for certiorari, 488, 515-517. 
 NOVA SCOTIA. 
 
 Justices of the Peace and Magistrates in, 16, 17. 
 
 Jurisdiction in habeas corpus, 485, 518. 
 
 Certiorari, Rules as to, 514, 518, 524. 
 OATH. 
 
 Of allegiance, 9, 31. 
 
 Evidence taken under, 201. 
 
 Administering, 201-203. 
 
 Mohammedans, 201. 
 
 Chinese, 201, 202. 
 
 Ruthenians, Poles, etc., 202. 
 
 Affirmation in lien of, 203, 548, 549. 
 
 Evidence of child without, 44, 203, 204, 549. 
 
 Persons who have no religious belief, 205, 206.
 
 INDEX. 697 
 
 OATH Continued. 
 
 Children taking, 549. 
 
 Information under, before warrant can issue, 115, 149, 156. 
 OBJECTIONS AND DEFECTS. 
 
 As to informations, warrants and convictions, 133-138, 265-267, 
 273-276, 290. 
 
 As to variances in information, 265-267. 
 OBJECTIONS AT TRIAL. 
 
 Waiver of, 155, 159, 238, 252, ,257, 266, 342, 352. 
 OFFENDERS. 
 
 Names of, should appear in informations for all offences, 126. 
 
 Names of, should appear in conviction, 280. 
 OFFENCES. 
 
 Against the rights of property, 241, 242. 
 
 Less included in greater, 117. 
 
 Jurisdiction as to trial of, in summary convictions, 131, 132, 238- 
 242. 
 
 Conviction must be in respect of one, 134, 275, 279. 
 
 Continuous acts treated as one offence in law, 279, 282. 
 
 Punishable under different Acts, 39. 
 
 Parties to, 58, 59, 280. 
 
 Locality of, 86-89. 
 
 Time or date of commission of, to be stated, 126, 127, 130. 
 
 Should be stated with particularity, 133, 135, 137, 138. 
 
 On waters and high seas, 131, 169. 
 
 Committed out of jurisdiction of Justice, 171, 172. 
 
 Information charging two, 245, 246, 251. 
 
 Description of, in words of statute, 127, 132, 265, 276-278. 
 
 Must not be charged disjunctively or in the alternative, 273. 
 
 Conviction for two offences is bad, 279. 
 
 Statements of, forms of, Appendix " B," 618-668. 
 OFFICERS. 
 
 In army and navy may arrest without warrant, 555. 
 OMISSION. 
 
 To perform statutory duty, 50. 
 ONTARIO. 
 
 Actions against justices in, 12. 
 
 Justices of the Peace and Magistrates in, 8-13, 381, 382, 399, 400. 
 
 Criminal Law of England in, 34. 
 
 Certiorari, rules as to, 510, 511, 518, 519, 522, 523. 
 OPIUM JOINTS. 
 
 Search and seizure in 389, 391. (See Disorderly House.) 
 ORDERS. 
 
 Difference between convictions and, 288-290. 
 
 Minute of, to be served on defendant, 294, 295. 
 
 May be good in part and bad in part, 290. 
 
 Refusal to obey, indictable at common law, 290. 
 
 Forms of 
 
 Discharging witness, 570. 
 
 For payment of money and in default distress, 574. 
 
 " " imprisonment, 575. 
 
 For other matters punishable by imprisonment, 575. 
 Dismissing complaint, 576.
 
 698 INDEX. 
 
 OUSTEB. 
 
 Of jurisdiction by question of title to land, 82, 83, 241, 242. 
 " " " claim of right to do the act, 84 
 
 PABTICULABS. 
 
 Order for, 118, 184. 
 In summary trials, 415, 416. 
 Statement of, in summons, 152. 
 PAETICXJLAB ACT COMMITTED. 
 
 Conviction must specify, 273-278. 
 Information must specify, 265. 
 PARTIES TO OFFENCES, 58, 59, 280. 
 
 PAYMENT OF PABT OF SUM ADJUDGED BY CONVICTION, 94, 311. 
 PEACE. 
 
 Breaches of, 53, 557. 
 Sureties to keep the, 314-320, 441, 442. 
 PEACE OFFICEB. (See Constable.) 
 
 Definition of term, 107. 
 PENALTY. 
 
 Share of person suing, 105. 
 Imposing wrong, 279. 
 
 Forfeiture of, must be adjudged in conviction, 284, 285, 433. 
 Must be sued for in 2 years, 551. 
 PENITENTIABY. 
 
 Commitment to, 426, 427. 
 PEBJUBY. 
 
 Warrant of arrest for, 160. 
 PLACE. 
 
 Where information taken should be stated, 122. 
 
 Jurisdiction of Magistrate confined to, 125. 
 
 Evidence as to, 128, 129. 
 
 Judicial notice of local geography, 129. 
 
 Venue, 130. 
 
 Where offence committed, 126, 127. 
 
 Exceptions to general rule as to the statement of time and place 
 
 in indictments, 130, 131. 
 PLEA. 
 
 Of guilty, effect of, 260, 
 
 " guilty by solicitor, or counsel, 152, 255, 257. 
 " not guilty, 262. 
 
 Appeal after plea of guilty, 321, 322, 326, 344. 
 POLICE MAGISTRATE. (See Magistrate and Justice of the Peace.) 
 In Ontario, 10, 11, 12, 13. 
 " Quebec, 15. 
 " New Brunswick, 18. 
 " Nova Scotia, 17. 
 " British Columbia, 19, 20. 
 " Manitoba, 21-23. 
 " Saskatchewan, 24, 25. 
 " Alberta, 26, 27. 
 " Yukon Territory, 28, 29.
 
 INDEX. 699 
 
 POWERS OF JUSTICES AND MAGISTRATES. 
 On preliminary inquiry, 195-197. 
 " summary conviction, 248-250. 
 In summary trials, 381-406. 
 PRELIMINARY INQUIRY, PART XIV. OF THE CODE. 
 Cannot proceed in absence of accused, 154. 
 
 " be held on Sunday, or statutory holiday, 167. 
 Procuring attendance of a prisoner at, 169. 
 
 witnesses at, 176, 186, 189-192. See Wit- 
 nesses. 
 
 Summons for witness, contents of, 188. 
 Production of documents at, 188. 
 
 Duties of Justices and Magistrates respecting, 176-229. 
 Procedure on appearance of accused, 177-185. 
 
 " when offence committed outside of jurisdiction of 
 
 justice, 171, 172. 
 Accused must be present, 177. 
 
 Summary conviction cannot follow, 177, 178, 180, 182, 198, 297. 
 Evidence to be taken on oath, 180, 181, 200. 
 Charge against corporation, 178. 
 
 Duty of justice at close of, 178, 180, 182, 183, 221, 222. 
 No fees to magistrate on, 182. 
 Evidence must be taken in presence of justices, 181. 
 
 " " " accused, 181, 198, 207. 
 
 If accused is discharged he may be re-arrested, 182. 
 S Difference between trial and, 178, 179, 182, 183. 
 Disagreement of justices, 184. 
 Non-interference by other justices, 184, 185. 
 Particulars, order for, 184. 
 Adjournment of inquiry, 184. 
 Irregularities and variances, 185. 
 Taking evidence of sick or infirm people, 187, 188. 
 
 " " on commission, 192, 193. 
 
 Powers of justices, 195-198. 
 Remanding accused, 195-198. 
 Bail on remand, 199, 200. 
 Same justices must act throughout, 196, 197. 
 * Decision of justices after hearing, 197-199. 
 Commitment for trial, 179, 197. 
 Dismissal of complaint, 183, 197. 
 Exclusion of persons from Court room, 198. 
 counsel, 198, 199, 207. 
 private prosecutor, 199. 
 Affidavit of stenographer, 210. 
 Depositions, mode of taking, 207-210. 
 " taken in shorthand, 210. 
 
 reading over, 211. 
 signing, 211. 
 
 Statement of accused, 211-214. 
 Evidence for the defence, 221. 
 Adjudication, 221, 222. 
 Discharge of accused, 222. 
 Committing accused, 222-225.
 
 700 INDEX. 
 
 PRELIMINARY INQUIRY Continued. 
 
 Prosecutor, binding over, 222, 223. 
 
 Depositions, copy for accused, 225. 
 
 Recognizance to prosecute, 225, 226. 
 
 " give evidence, 225, 226. 
 
 Warrant for absconding witness, 226, 227, form of, 565. 
 
 Transmission of papers to clerk of trial court, 227, 228. 
 
 Bail under sec. 696 of the Code, 178, 227-229. 
 " after committal, 178, 229-235. 
 
 Order for bail by Judge, 235. 
 
 Warrant of deliverance, 235. 
 
 Person bailed absconding, 235. 
 
 Delivery of accused to gaoler, 236. 
 
 Estreat of recognizance, 236. 
 
 Waiver of, 180, 181. 
 PRELIMINARY OBJECTION, 257. 
 PRESERVING ORDER IN COURT. 
 
 Powers of Police Magistrates as to, 248, 249. 
 
 " Justices as to, 249, 250. 
 
 PREVIOUS CONVICTION. 
 
 On suspended sentence, 429-431. 
 
 Proof of, 431. 
 PRINCE EDWARD ISLAND. 
 
 Justices of the Peace and Magistrates in, 19. 
 PRINCIPAL. 
 
 And accessories, distinction abolished, 59. 
 PRISON. (See Gaol.) 
 
 Meaning of, 237. 
 PRISONER. 
 
 Removal of, from gaol to be brought before justice, 169. 
 
 Warrant remanding, form of, 566. 
 
 " of deliverance on bail, form of, 572. 
 PRIVATE PROSECUTOR. 
 
 Right to be heard, 199. 
 
 Appeal by, 419. 
 
 Right to certiorari, 491. 
 PROCEDENDO. 
 
 Writ of, not now required, 520. 
 
 PROCEDURE. (See Appeal Indictment Preliminary Inquiry Sum- 
 mary Convictions Summary Trials Habeas Corpus 
 Certiorari.) 
 PROCEEDINGS. 
 
 Certain defects in, not to vitiate, 265-267, 301. 
 
 On preliminary inquiry, Part XIV., 176-236. 
 
 " summary convictions, Part XV., 237-359. 
 trials, Part XVI., 380-455. 
 
 After conviction. (See Commitment.) 
 PRODUCTION OF DOCUMENTS, 188. 
 PROHIBITION, 110-113. 
 PB/OOF. 
 
 Of age of infant, 44. 
 " previous conviction, 431, 433.
 
 INDEX. 701 
 
 PROPERTY. 
 
 Injured, must be specified in conviction, 274. 
 
 Restitution of stolen, 438-441. 
 
 Compensation to purchaser of stolen property, 437, 438. 
 for loss of, 436, 437. 
 
 As to what "property" includes, sec 2 (32) of the Code, 438. 
 PROSECUTOR. 
 
 Evidence for, 207-210. 
 
 Binding over, 222, 223. 
 
 Non-appearance of, 255, 256. 
 
 Private, 199, 419, 491. 
 PROSECUTION OF CRIMES. When to be commenced. 
 
 Laying of the information is the commencement of, 123. 
 
 Indictable offences, 550, 551. 
 
 Summary convictions, 551. 
 
 Penalties or forfeiture, 551. 
 PUBLIC MEETINGS. (See Assembly.) 
 PUBLIC OFFICER. 
 
 Definition of expression, 107. 
 PUNISHMENT. 
 
 Fines, sees. 1026-1085 of the Code, 433, 434. 
 
 Not twice for same offence, 40. 
 
 At common law, 40. 
 
 Only after conviction, 288, 423. 
 
 Degrees of, 307, 424-426. 
 
 Cumulative, 312, 426. 
 
 Imprisonment at hard labour, 305, 308, 425. 
 
 On conviction under sec. 773, 442-444. 
 
 For keeping disorderly house, 443, 444. 
 
 Suspended sentence, 429, 430. 
 
 Sentence too long, 287, 298, 308, 427, 502, 506. 
 
 short, 287, 288, 502. 
 PURSUIT. 
 
 Of escaping prisoners, 166, 555, 556, 557. 
 QUALIFICATION. 
 
 Of Justices of the Peace, 7. 
 
 Oath of, 7, 8. 
 
 QUASHING CONVICTION. (See Conviction.) 
 QUEBEC, PROVINCE OF. 
 
 Quebec Act, 35. 
 
 Constitutional Act, 35. 
 
 Criminal Law of England in, 35. 
 
 Justices of the Peace and Magistrates in, 13-16, 75. 
 
 Certiorari, jurisdiction of Courts in, 496, 497. 
 
 Habeas corpus, jurisdiction of Courts in, 467, 474, 476, 480. 
 
 Magistrates' jurisdiction in summary trials, 381, 399, 400. 
 QUESTION. 
 
 Of title to land, 82-84, 241, 242. 
 Qui TAM ACTIONS. 
 
 For not making returns, 103-105. 
 RAPE. 
 
 Attempt to commit, 65.
 
 702 INDEX. 
 
 RECEIPTS. 
 
 From Justice to constable for prisoner, form of, 562. 
 
 " gaoler to constable for prisoner, form of, 572. 
 RECEIVING. 
 
 Stolen goods, 383, 398. 
 RECORDERS. 
 
 In Quebec, 16. 
 RECOGNIZANCE. (See Bail.) 
 
 Render by sureties, 231. 
 
 Binding over prosecutor, 225. 
 
 To prosecute after preliminary inquiry, 225. 
 
 Binding witness to give evidence, 225. 
 
 May be taken on Sunday, 226. 
 
 How to be signed, 226, 320. 
 
 Under sec. 696 of the Code, 227-229. 
 
 After committal for trial, 229-235. 
 
 Order for bail by Judge, 235. 
 
 Manner of taking a, 320. 
 
 Discharge of, 320. 
 
 Estreat of, 236. 
 
 To keep the peace, 314-319, 441, 442. 
 
 On appeal from conviction, 334-337. 
 
 " appeal by stated case, 354, 355: 
 
 " certiorari proceedings, 488, 491, 509-512. 
 
 Forms of 
 
 Bail on remand, 566. 
 Prosecutor to prosecute, 568, 569. 
 To prosecute and give evidence, 569, 570. 
 Bail under sec. 696, 571. 
 To keep the peace, 583. 
 " try appeal, 584. 
 
 RECOVERY OF COSTS, 304, 311, 313, 314. 
 RECORD. 
 
 Of proceedings in summary conviction cases must be kept, 261. 
 RELEASE. 
 
 From further proceedings, 309, 450. 
 RELEVANT FACTS. 
 
 What are, 194, 541, 542. 
 RELIGION. 
 
 Offences against, forms of indictments, 624, 625. 
 REMAND. 
 
 By justices in preliminary inquiry, 195, 197, 198-200. 
 
 Bail on, 198, 199, 200, 264. 
 
 Noting in proceedings, 261. 
 
 Warrant on, 195, form of, 566. 
 
 In habeas corpus, 466-468. 
 
 Recognizance on, in habeas corpus, 467. 
 
 For inquiry as to surety, 47, 184, 195. 
 
 For unreasonable time is void, 198. 
 REMEDIES. 
 
 Extraordinary. (See Habeas Corpus and Certiorari.) 
 RENDER BY SURETIES, 231. (See Bail.)
 
 INDEX. 
 
 REPEALED STATUTE. 
 
 Conviction under, 285, 286, 406. 
 REQUISITES. 
 
 Of information, 117, 185, 245, 246. 
 RES GEST.E, statements part of, 220, 
 RES JUDICATA, 40, 297. 
 RESISTING OR OBSTRUCTING A PEACE OFFICER. 
 
 How triable, 386, 387, 444, 445. 
 RESISTING IRREGULAR ARREST, 168. 
 RESPONSIBILITY. 
 
 Of justices and magistrates, 90-113. 
 
 Of principals for acts of agents, 244. 
 RESTITUTION. 
 
 Of stolen property, 438-441. 
 RETURNS. 
 
 Under sees. 1133-1139 of the Code, form of, 594! 
 
 Of convictions, 103-105. 
 
 Constable's return to warrant of distress, 581. 
 
 To writ of habeas corpus, 465, 466, 468. 
 
 To certiorari, 519. 
 RETURNING OFFICERS. 
 
 Conservators of the peace, 5, 6. ' 
 RIGHTS OF PROPERTY. 
 
 Offences against, forms of statements of, 643-660. 
 RIOTS. 
 
 Suppression of, 54-58. 
 
 Duty of sheriff and magistrates, 54. 
 
 " the military, 54. .-.- 
 
 Reading of Riot Act, 57, 58. 
 
 Duty of magistrate respecting, 58. 
 
 Riotously demolishing dwellings, 130. 
 ROYAL NORTH-WEST MOUNTED POLICE, 5, 28, 30. 
 RULES OF COURT. 
 
 As to Habeas Corpus and Certiorari, etc. 
 Ontario, 510, 511, 518, 522, 523. 
 New Brunswick, 518. 
 Nova Scotia, 510, 511, 518, 524. 
 British Columbia, 510, 511, 518, 524-526. 
 Saskatchewan, 526-531. 
 Alberta, 533-536. 
 
 As to cases stated under sec. 761. 
 Saskatchewan, 531-533. 
 Alberta, 536, 537. 
 SACRILEGE, 130. 
 SALE. 
 
 Of goods on distress, 305, 306. 
 
 Bailiff's inventory of goods seized, 616. 
 
 Appraisement, 616. 
 
 Notice of sale of goods distrained, 617. 
 SASKATCHEWAN, PROVINCE OF. 
 
 Justices of the Peace and Magistrates in, 24, 25. 
 
 Habeas corpus in, 458, 486, 526-531.
 
 704 INDEX. 
 
 SASKATCHEWAN, PROVINCE OF Continued. 
 
 Certiorari Rules in, 526-531. 
 
 Cases stated in, Rules, 531-533. 
 SEAL. 
 
 Conviction must be under Justice's, 92, 280, 290. 
 SEAMEN. 
 
 Offences committed on high seas, 169. 
 
 Seafaring persons, 397. 
 SEAS. 
 
 Admiralty jurisdiction on high, 169. 
 
 Offences committed on high, 169. 
 SEARCH WARRANT. 
 
 Detention of things seized, 174. 
 
 Issue of, 174. 
 
 Information for, 174. 
 
 Execution of, 174, 175. 
 
 Need not be quashed before action brought, 175. 
 
 Backing, or endorsing, 141, 167, 168. Form of, 559. 
 
 Information for, form of, 558. 
 
 Form of warrant, 559. 
 SENTENCE. (See Punishment.) 
 
 Prisoner on suspended, 429-431. 
 SERVICE OF COPY OF WARRANT, OR ORDER, 115, 294, 295. 
 
 Failure to serve does not prevent conviction, 160. 
 SERVICE OF SUMMONS. 
 
 By constable, or peace officer, 145-150. 
 
 Personal service, 145, 146. 
 
 Substitutional service, 145-147. 
 
 Of summons for witness, 186, 188, 247, 248. 
 SESSIONS OF THE PEACE, COURT OF GENERAL. 
 
 Magistrate having similar jurisdiction, 398-402. 
 
 Offences which cannot be tried by Court of, 402. 
 SEVERAL OFFENCES. 
 
 Conviction for, 279. 
 SEVERAL OFFENDERS. 
 
 Conviction of, 280. 
 SHERIFF. 
 
 Not to act as Justice of the Peace, 6. 
 
 Duty of, respecting persons in gaol in default of sureties of the 
 
 peace, 317. 
 SHIPS. 
 
 Offences committed in, at sea, 169. 
 SHORTHAND, TAKING EVIDENCE IN. (See Evidence.) 
 SIGNATURE TO WARRANTS, 155-158. 
 SICK WITNESSES. 
 
 Examination of, 186-188. 
 SIGNATURE OF JUSTICE, 290. 
 SOLICITOR. 
 
 Appearance by, for defendant, 254. 
 
 Not eligible as a Justice of the Peace, 7, 21, 24, 26, 75. 
 
 Plea of guilty by, in absence of accused, 152, 255, 257. 
 
 Exclusion of, at hearing, 198, 199.
 
 INDEX. 705 
 
 STATEMENT OF ACCUSED. 
 
 On preliminary inquiry, 211, 214. 
 STATED CASE. 
 
 Appeal by way of, 350-358. 
 
 Recognizance of appellant, 354, 355. 
 
 Justice's refusal to state a case, 355, 356. 
 certificate of refusal, 355, 356. 
 
 Application to the Court for, 356. 
 
 Hearing of case stated and costs, 357, 358. 
 
 Enforcement of conviction on same being affirmed, 358. 
 
 Forms relating to, 610-613. 
 
 Crown Practice rules relating to, 531-533, 536, 537. 
 STATEMENT OF OFFENCE. 
 
 In informations 
 
 (a) Must not be by way of recital, 134. 
 
 (b) " " in the alternative or disjunctive, 134. 
 
 (c) Must include every ingredient, 133, 134, 135-138. 
 
 (d) May be in the words of the statute, 132, 133, 265. 
 See Information and Complaint. 
 
 See Appendix " B," 618-658, for forms. 
 STEALING. (See Theft.) 
 
 In a dwelling, local description required in conviction, or count, 
 
 130. 
 STENOGRAPHER. 
 
 Taking evidence in shorthand, 210. 
 
 Must be first sworn, 210, 259. 
 
 Affidavit of, as to depositions, 210. 
 STIPENDIARY MAGISTRATES. (See Magistrates.)' 
 
 Appointment of, by Dominion Government, 4, 5. 
 
 In North-West Territories, 5, 27, 28. 
 
 " Yukon Territory, 5. 
 
 " Quebec, 15. 
 
 " Nova Scotia, 17. 
 
 " New Brunswick, 18. 
 
 " British Columbia, 19, 20, 73. 
 
 Jurisdiction respecting indictable offences, 381, S82, 398, 399. 
 STOLEN PROPERTY. 
 
 Restitution of, 438-441. 
 
 STBPCENA. (See Summons for Witnesses.) 
 Si BPCKNA Dress TECUM, 188. 
 SUMMARY CONVICTIONS, PART XV. OF THE CODE. 
 
 Distinction from indictable offences, 116. 
 
 Proceedings under sees. 705-770 of the Code, 237-359. 
 
 Conviction as a bar to further proceedings, 39-41. 
 
 Time for commencing proceedings, 122, 243, 551. 
 
 Ex parte proceedings on proof of service of the summons, 154, 254. 
 
 Non-appearance of the defendant, 154, 253-255. 
 
 Original charge only can be tried, if accused does not appear, 155. 
 
 Application of Part XV. of the Code, 237. 
 
 Interpretation clause of Part XV. of the Code, 237. 
 
 Jurisdiction of justice, 238-242. 
 
 C.C.P. 45
 
 706 INDEX. 
 
 SUMMARY CONVICTIONS Continued. 
 
 Information and complaint in, 242. 
 
 Requisites of information, 245, 246. (See Information.) 
 
 Issuing warrant or summons, 238, 246, 247. 
 
 Procuring attendance of witnesses, 247, 248. 
 
 Summons for witness, out of jurisdiction, 247, 248. 
 
 Trial, open Court, 248. 
 
 Contempt of Court, 249, 250. 
 
 Conduct of trial, 250-252. 
 
 Full answer and defence must be allowed, 250, 251, 262, 263. 
 
 Taking evidence of person residing out of Canada, 250. 
 
 Exceptions and exemptions, negativing, 253, 282-284, 325. 
 
 Witnesses must be examined although defendant absent, 254. 
 
 No amendment of information in ex parte proceedings, 254. 
 
 Non-appearance of prosecutor, dismissal, 255. 
 
 Corporations, service of summons on, 256. 
 
 shall appear by attorney, 256. 
 Arraignment of the defendant, 256, 257. 
 If he pleads guilty, conviction forthwith, 256. 
 " " not guilty, trial same as Part XIV., 257. 
 
 Evidence shall be taken same as on preliminary inquiry, 257, 258. 
 
 " must be in writing, need not be signed, 259. 
 
 " ' " " taken in presence of magistrate, 260. 
 Adjournment of hearing in discretion of magistrate, 260-263. 
 
 must be to a day certain, 262, 263. 
 
 Defendant is bound to attend Court and wait trial, 263, 264. 
 Defects and objections to informations, warrants, etc., 133-138, 265- 
 
 267, 273-276, 29'0. 
 
 Excluding witnesses from Court room, 264. 
 Variances or defects in information, 265-267. 
 Defects in information not cured by the evidence, 266. 
 Objections at trial, 238, 252, 257, 342, 352. 
 Trying several cases together, 252. 
 Taking a view, 253. 
 
 Irregularities curable under sec. 1124 of Code, 267. 
 Adjudication after hearing witnesses, 267-269. 
 Evidence must support charge as laid, 268. 
 Personal knowledge of magistrate cannot be acted on, 269, 405. 
 Two justices sitting, must act together to the end, 238, 269. 
 Minute or memorandum of the conviction, 269-272. 
 Not absolutely necessary that there should be any minute made, 
 
 269. 
 
 Variance between minute and conviction, 270-272. 
 Minute need not state amount of costs, 270, 271. 
 Drawing up the conviction, 272-275. 
 Must follow summons, if accused not present, 275. 
 Warrant may issue and be acted on before formal conviction 
 
 drawn up, 273. 
 
 Charge must be positive and certain and offence not charged dis- 
 junctively or in alternative, 273, 285, 286. 
 
 Examples of convictions and what they should contain, 273-288. 
 Vagrancy and proof of, 276. 
 Conviction for two offences is bad, 279.
 
 INDEX. 707 
 
 SUMMARY CONVICTIONS Continued. 
 
 Conviction not under seal is a nullity, 280. * 
 
 Names of informant and defendant must appear in, 280. 
 
 Name and style of magistrate must be set forth, 281. 
 
 Time and place of committing act must be specified in conviction, 
 
 281, 282. 
 
 Exception by way of proviso, 283, 284. 
 Conviction must adjudge forfeiture of the penalty, 284, 285. 
 All facts necessary to support conviction must be alleged, 287. 
 Punishment only after conviction, 288. 
 Orders, distinction between, and convictions, 288-290. 
 Minute of order must be served before distress, 290, 294, 295. 
 Conviction must be under hand and seal of justice, 290. 
 Joint offenders and penalty adjudged, 291. 
 First conviction and payment of damages, sec. 729, 291-294. 
 Offences to which sec. 729 applies, 292, 293. 
 Dismissing complaint, order, 294. 
 Certificate of dismissal, 294, 296, 297. 
 
 Common assault and adjudication upon, 295. (See Assault.) 
 Definition of assault, 295. 
 Dismissal of complaint of assault, 296. 
 Payment of fine or suffering imprisonment adjudged operates as 
 
 release from further action, 296, 309. 
 Effect of certificate operating as a bar, 297. 
 Costs on conviction or order, 298-303. (See Costs.) 
 Amount of costs must appear on face of conviction, 304. 
 Excessive costs may be reduced on certiorari, 302. 
 Costs of conveying defendant to gaol, 302, 303. 
 
 " on dismissal and distress against prosecutor, 303, 311. 
 " allowed recoverable same way as penalty, 304. 
 What punishments may be adjudged, 304, 305. 
 Warrant of distress and backing of same, 305-307. 
 Magistrate's discretion as to fine alone, or imprisonment, 307. 
 Different degrees or kinds of punishment, 307. 
 Imprisonment in first instance, and hard labour, 308. 
 
 in addition to fine, 309. 
 
 Enforcing adjudication, different kinds of warrants, 309-311. 
 Another justice may issue warrants, 310. 
 Manner of executing warrants, 310-311. 
 Distress for costs against goods of prosecutor, 311. 
 Imprisonment of prosecutor in default of distress, 311. 
 Detention of defendant pending distress, 312. 
 Proceeding where defendant is in prison on conviction for another 
 
 offence, 312. 
 Sentences for too long or too short a time, 287, 288, 298, 308, 427, 
 
 502, 506. 
 
 Sentences running consecutively or concurrently, 312, 426. 
 Imprisonment to be in common gaol of county or district, 313. 
 Payment, or tender, to peace officer, to stay warrant of distress, 313. 
 Payment to keeper of the gaol of fine and costs, 313. 
 Sureties to keep the peace, 314-316. 
 Imprisonment in default of recognizance, 314. 
 Recovery of costs, 304.
 
 708 INDEX. 
 
 SUMMARY CONVICTIONS Continued. 
 
 Release from further proceedings, 296, 309. 
 
 Complaints of threats of personal injury, 268, 315, 316. 
 
 What warrant of commitment in such a case must show, 317, 318. 
 
 Where person imprisoned in default of sureties, duty of sheriff 
 
 to notify Judge, 316, 317. 
 Imprisonment for non-payment of costs, 318. 
 No appeal from order of justice to find sureties, 319. 
 But habeas corpus and certiorari will lie, 319. 
 Binding over both parties, 319. 
 Manner of taking recognizance, 320. 
 Discharge of recognizance, 320. 
 Appeal from convictions or orders, 320-349. 
 Right of appeal is to any person aggrieved, 321, 323. 
 Appeal after plea of guilty, 321, 322, 326, 344. 
 
 " waived or lost, 324, 331. 
 
 Requirements of the statute are imperative, 325, 332, 333, 334, 336. 
 Judge imposing reduced sentence on appeal, 325. 
 Appeal when certiorari pending, 326. 
 Cases as to right of appeal, etc., 321-327. 
 No second appeal after first dismissed, 334, 340. 
 Procedure on appeal, 327-329. 
 Notice of appeal and filing same, 329-334. 
 Contents of the notice, 332-334. 
 Substitutional service of the notice, 333. 
 Recognizance, or deposit, on appeal, 334-337. 
 Appeal where penalty imposed, 337. 
 Deposit to be made with justice, 337, 338, 339. 
 Transmission of deposit to court appealed to, 338, 339. 
 Hearing of the appeal, 339, 340. 
 Using evidence taken before the justice, 342. 
 Judgment on appeal final, 341. 
 Objections taken on the appeal, 342. 
 Judgment shall be upon the merits, 343, 344. 
 Costs where appeal not prosecuted, 344, 345, 346. 
 Proceedings where appeal fails, 343, 346, 347. 
 Transmission of conviction by justice, 347, 348. 
 Return of papers to justice after appeal fails, 347. 
 Costs of appeal and recovery thereof, 349. 
 Abandonment of appeal, 349, 350. 
 Stating a case on points of law, 350-357. 
 Recognizance before case stated, 354, 355. 
 Refusal by justice to state a case, 355, 356. 
 Application to Court for rule to the justice, 356. 
 Certificate of refusal by magistrate, 355, 356. Form of, 610. 
 Hearing of stated case by the Court, 357. 
 Costs, and enforcement of conviction after case stated, 358. 
 Certiorari not necessary to remove conviction, when case stated, 
 
 358. 
 Where an Act provides for no appeal, there cannot be stated case, 
 
 358. 
 
 Forms of application for stated case, etc., Appendix " A," 610-612. 
 Tariff of fees under Part XV., 358, 359. 
 See also Convictions.
 
 INDEX. 709 
 
 SUMMARY TRIALS, PART XVI. 
 
 Proceedings under this Part of the Code, 380-455. 
 
 Scope and powers of magistrates, 380. 
 
 Interpretation clause, 381. 
 
 What " Magistrate " means and includes, 381, 382. 
 
 Jurisdiction of magistrates mentioned in sec. 771, 383-387. 
 
 Resisting or obstructing a peace officer, how triable, 386, 387. 
 
 Jurisdiction on charge of assault causing bodily harm, 382, 383, 423. 
 
 List of offences that may be summarily tried, 383. 
 
 Jurisdiction of some magistrates to try more serious offences, 
 
 384, 385. 
 
 Definition of " theft," whether theft from the person included, 384. 
 Decisions of several Courts respecting jurisdiction, 386, 387. 
 Disorderly houses defined, sec. 228, 388. 
 Landlords, etc., of, 388. 
 Search for women in houses of ill-fame, 389. 
 
 " in gaming and betting houses, 389, 390. 
 Powers of magistrate to examine persons found in gaming house, 
 
 etc., 390, 391. 
 
 Indemnity to witness making full disclosure, 390, 391. 
 Jurisdiction to proceed when no information on oath, 118. 
 Search and seizure in opium joint, 391. 
 
 " for vagrants in disorderly houses, 391. 
 Prima facie evidence of gaming house, 391, 392. 
 Constables obstructed in entering, 391. 
 Charges against corporations, 392. 
 Magistrates' absolute jurisdiction re disorderly houses, 392-397. 
 
 over seafaring person, 397. 
 Maximum punishment same, no matter what magistrate tries 
 
 case, 393. 
 ^r Exercise of the jurisdiction is optional, 385, 395, 413, 447. 
 
 Absolute summary jurisdiction of justices under other parts of 
 
 Code not affected, 397. 
 Magistrate's absolute jurisdiction in certain provinces, 397, 398. 
 
 have jurisdiction of Courts of General Sessions of the 
 
 Peace, in Ontario, sec. 777, 398. 
 
 In other provinces where city or town is 2,500 population, 399, 400. 
 Punishments awardable, 400, 403, 405. 
 Attorney-General may intervene in certain cases, 399, 401. 
 Habeas corpus and certiorari will lie after convictions under this 
 
 Part, 396, 404. 
 Jurisdiction absolute in theft, etc., in cities of not less than 25,000 
 
 population, 399, 401, 404. 
 Consent of accused 1 is required to give jurisdiction in theft from 
 
 the person, 401. 
 Crimes which cannot be tried by General Sessions, 402. 
 
 Magistrates under sec. 777, 402. 
 
 Cases relating to summary trials by Magistrates, 403-406. 
 Trial of offence committed outside jurisdiction of magistrate, but 
 
 in same province, 405, 422, 424. 
 
 Proceedings on arraignment stating substance of charge, 406. 
 Offer of election to be made by Magistrate to accused, 406-410. 
 Remand into custody for new f rial on proper offer of election, 410.
 
 710 INDEX. 
 
 SUMMARY TRIALS Continued. 
 
 Recital of consent in conviction, 410, 450. 
 
 " " " warrant of commitment, 415. 
 
 Reduction of charge to writing by Magistrate, 411-413. 
 
 Description of the offence, 415. 
 
 If accused elects for jury, proceedings same as on preliminary in- 
 quiry under Part XIV., 415, 446. 
 
 If person consents and pleads " not guilty," trial is conducted as 
 at nisi prius, 183, 414. 
 
 Taking evidence in shorthand, 414. 
 
 If charge amended after consent, new offer of election must be 
 made, 415. 
 
 Magistrates may make order for particulars, 415, 416. 
 
 Admission of facts by accused or his counsel, 416. 
 
 Appeal by reserved case to Court of Appeal, 416-421. 
 
 No other appeal lies except in cases provided for in sec. 797, 417, 
 418, 453. 
 
 If no substantial wrong, the conviction stands, 421. 
 
 Minister of Justice may order a new trial, 421. 
 
 Admission to bail pending appeal, 422. 
 
 Accused may be convicted of lesser offence than that charged, 422, 
 423. 
 
 Punishment for offences only after conviction, 423. 
 
 Substitution of good for bad conviction or commitment, 423, 424. 
 
 Punishment is in the discretion of the Court, 424. 
 
 Imprisonment, hard labour, 425. 
 
 Cumulative punishment, 426. 
 
 Imprisonment in the penitentiary, 426, 427. 
 common gaol, 427. 
 reformatory, 381, 427. 
 
 Warrant of commitment must be certain and definite, and to com- 
 mon gaol in county for which Magistrate is acting, 427. 
 
 Conviction will not be quashed for want of form, 428. 
 
 Commitment not vaid for defects, if conviction is good, 428. 
 
 Suspended sentence and recognizance therefor, 429-431. 
 " " concurrence of Crown counsel, 429. 
 
 Offender may be ordered to pay the costs of the prosecution, 429, 
 430. 
 
 Complaint must be laid of breach of recognizance before offender 
 can be sentenced for original conviction, 430, 431. 
 
 Previous convictions should be proved at close of trial, 431. 
 
 Warrant may issue on breach of condition of recognizance, 431. 
 
 Before whom offender may be brought, 432. 
 
 Subsequent proceedings in such case, 432, 433. 
 
 Fines to be in discretion of the Court, 433. 
 
 Conviction must adjudge forfeiture, 433. 
 
 Fines in lieu of, or in addition to, imprisonment, 434. 
 
 Corporation may be fined in lieu of prescribed punishment, 434. 
 
 If no mode prescribed for recovery of fine, civil action may be 
 brought for its recovery, sec. 1038, 434. 
 
 On conviction offender may be required to pay all costs and ex- 
 penses of the prosecution, 434. 
 
 Allowances for loss of time may be included, 434, 436.
 
 INDEX. 711 
 
 SUMMARY TRIALS Continued. 
 
 Costs and expenses may be deducted out of moneys taken from the 
 
 offender on his apprehension, 434, 436. 
 Or may be enforced by civil action, 434, 436. 
 How costs are to be taxed where no tariff of fees, 435, 436. 
 On conviction, by indictment, for assault, costs, 436. 
 Compensation for loss of property, 436, 437. 
 Amount awarded to be a judgment debt, 436. 
 Compensation to purchasers of stolen property, 437, 438. 
 Restitution of stolen property, 438-441. 
 Sale in market overt, 439, 440. 
 Must be a conviction before order made, 438, 440. 
 Restitution of proceeds of stolen goods found on prisoner, 440. 
 Bonds to keep the peace in addition to sentence imposed, 441, 442. 
 Punishment on convictions under sec. 773, 442-445. 
 Procedure where property stolen, etc., exceeds $10 in value, sec. 
 
 782, 445-447. 
 
 Magistrate may decide not to proceed summarily, 447. 
 Person accused shall be allowed to make full answer, 448. 
 Objections at trial, 252, 448. 
 The Court shall be open to the public, 448. 
 Taking a view. 448. 
 Summons may issue to witnesses, 449. 
 Warrant may issue for defaulting witness, 449. 
 Dismissal of the charge, and certificate thereof, 450. 
 Conviction same as conviction on indictment, 450. 
 Certificate of dismissal operates as a release, 450, 451. 
 Copy of conviction or certificate as evidence, 450. 
 Transmission of papers to clferk of Court, 450. 
 Release from further proceedings, 451. 
 Justices may remand certain offenders for trial before nearest 
 
 magistrate, sec. 796, 452. 
 
 Appeals from convictions under sec. 773, 452, 453. 
 Juvenile offenders, 453-455. 
 SUMMONS. 
 
 Issuing of against offenders, 139, 144, 246, 247. 
 For offences outside limits of jurisdiction, 140, 141. 
 When it should be issued instead of warrant, 141. 
 Discretion is with Justice as to issuing, 141, 246. 
 It should be directed to the party charged, 142, 144. 
 
 be under hand and seal of the Justice, 142. 
 
 contain the substance of the charge, 142. 
 
 give ample time for appearance, 142, 147, 148, 149. 
 
 be to appear at a certain place and time, 142. 
 
 not to be signed in blank, 144, 145. 
 
 be served by constable, or peace officer, 144. 
 In absence of defendant may be served on others, 144-147. 
 Proof of service must be made under oath, 144, 147, 148, 153. 
 Must not be issued on a Sunday, 145. 
 
 " statutory holiday, 145. 
 
 As to sufficiency of service of same, 145-149. 
 Irregularities in, 115. 
 Recital of information in, 119.
 
 712 INDEX. 
 
 SUMMONS Continued. 
 
 Substitutional service of, 144-149. 
 
 Must follow the information in describing offence, 155. 
 
 Waiver of irregularities by defendant, 151-153. 
 
 Issue of second summons after conviction quashed, 153. 
 
 Witnesses, summons for, 186-189, 247, 248, 449. 
 
 Forms of 
 
 For indictable offences, 560. 
 
 " witnesses, 563. 
 SUNDAY. 
 
 Information may be taken on, 167. 
 
 Warrant may issue on, 145, 161, 167. 
 
 be executed on, 145, 161, 167. 
 
 Escaped prisoner may be retaken on, 145. 
 
 Summonses cannot legally issue on, 145. 
 
 Recogniance under sec. 692, may be taken on, 226. 
 
 Ministerial acts may be performed on, 144. 
 SUNDAY OBSERVANCE LAWS LORD'S DAY ACTS. 
 
 Attorney-General's consent to prosecution, 374. 
 
 Barber's shop, keeping open, 374. 
 
 By-laws, unreasonable or ultra vires, 375. 
 
 Cab driving, 375. 
 
 Cigars, sale of, 375, 376. 
 
 Constitutionality of, 38, 378, 379. 
 
 Farmer building fences, 376. 
 
 Ice cream, candies, etc., sale of, 376. 
 
 Newspapers, sale of, 376, 377. 
 
 Playing cards for money, 377. 
 
 Pool rooms, keeping open, 377. 
 
 Sale of land, 377. 
 
 Stores and shops, sales in, 377. 
 
 Theatres, etc., performances in, 377, 378. 
 
 Ultra vires statutes, 38, 378, 379. 
 SUPREME COURT OF CANADA. 
 
 Judges of, Justices of the Peace ex oflicio, 5. 
 
 Jurisdiction as to Jiabeas corpus, 458, 460. 
 SUPPRESSION OF RIOT. (See Riot.) 
 SURETIES FOR THE PEACE. 
 
 When and how ordered, 268, 314-320, 441, 442. (See Summary Con- 
 victions.) 
 
 Conviction for assault cannot follow mere complaint for, 268. 
 
 Forms 
 
 Of complaint for, 582. 
 " commitment in default, 583. 
 
 " recognizance to keep the peace, 583. (See Recognizance.) 
 SUSPENDED SENTENCE. 
 
 And recognizance therefor, 429-431. 
 
 Concurrence of Crown counsel in certain cases, 429. 
 
 Offender may be ordered to pay costs of Court, on, 429. 
 
 Apprehension on breach of recognizance, 431-433. 
 
 Justices before whom offender may be brought, 431, 432.
 
 INDEX. 713 
 
 SUSPICION AND BELIEF. 
 
 Not sufficient upon which to issue warrant in summary convic- 
 tions, 155. 
 SWEARING OF WITNESSES. 
 
 Mode of administering oaths, 201-203. 
 TAKING EVIDENCE. 
 
 Mode of taking same under oath, 207-210. 
 
 May be taken in shorthand, 210. 
 
 Depositions to be read over and signed, 211, 258. 
 
 May be taken in absence of accused in summary conviction trials, 
 258. 
 
 Must be taken in presence of the accused and magistrate in pre- 
 liminary inquiry and summary trials, 181, 188, 201, 414. 
 
 (See Evidence.) 
 TARIFF OF FEES AND COSTS. 
 
 In summary convictions, 301, 303. 
 
 Justice's fees, 358, 359. 
 
 Constable's fees, 359. 
 
 Witness' fees, 359. 
 
 Interpreter's fees, 359. 
 TAXATION OF COSTS. 
 
 (See Costs.) 
 TELEGRAMS. 
 
 Arrest on authority of, 160, 161, 470, 483. 
 TENDER. 
 
 Of amends, 101, 551, 552. 
 TERRITORIAL LIMITS AND DIVISIONS. 
 
 Jurisdiction of justices in 73, 161, 166, 167. 
 
 Meaning of, 237. 
 
 Arrests within, for offences without, 169. 
 THEFT. 
 
 Term " Larceny " abolished, 2. 
 
 Of property not exceeding value of $10, 383, 401. 
 
 From the person, 384, 401. 
 THREATENING. 
 
 To injure persons, 315. 
 
 To burn or set fire, 315, 317. 
 TIME OR DATE. 
 
 Of offence should be stated in information, 126, 127. 
 
 " " " " " " conviction, 287. 
 
 " indictments, 127, 130. 
 TIME, LIMITATION OF. 
 
 For commencing criminal prosecution, indictable offences, 123, 124, 
 551, 552. 
 
 Summary convictions, 123, 124, 243, 551. 
 
 (See Limitation of Actions.) 
 TITLE. 
 
 To land, ouster of jurisdiction, 83, 84, 241, 242. 
 TREASON. 
 
 Form of indictment for, 618. 
 TRANSMISSION. 
 
 By justices of depositions, etc., to clerk of peace, 227, 228, 230, 338, 
 339, 347, 348.
 
 714 INDEX. 
 
 TRESPASS. 
 
 Title to land in question, 83, 84. 
 TRIAL. 
 
 Commitment for, 223. 
 
 Summary convictions, 183, 248. 
 
 Open Court, at, 248. 
 
 Order in Court, 248, 249. 
 
 Conduct of, 250-252. 
 
 Objections at. See WAIVER. 
 
 Indictable offences, summary, 183, 380-455. 
 
 Procedure under sec. 778 of the Code, 406-416. 
 
 New trial by order of Minister of Justice, 421. 
 
 Of charges, theft, etc., over $10, 445-447. 
 
 Of juvenile offenders, 453-455. 
 
 Of several cases together, 252, 253. 
 
 Taking a view, 253. 
 
 UNCERTAINTY IN STATEMENT OF CHARGE, 185, 186, 274, 277, 278. 
 UNORGANIZED TERRITORY. 
 
 Trial of offences committed in, 29. 
 UNLAWFUL ASSEMBLY. 
 
 And riots, 55, 56. 
 UNLAWFUL WOUNDING. 
 
 Punishment for under sec. 773, 443. 
 VAGRANTS. 
 
 What convictions against, should specify, 276, 277. 
 
 Disorderly houses, 388-397. 
 
 Search for in disorderly houses, 391. 
 
 Statements of charges against, for informations, forms of, Appen- 
 dix " B," 629, 630, 
 VALUABLE SECURITY. 
 
 Valuation of, 383. 
 VARIANCES. 
 
 Between information and evidence, 128, 255. 
 
 In summons, warrants, etc., 185, 265, 266. 
 VENUE. ^ 
 
 Means place where crime is charged to have been committed, 128- 
 130. , 
 
 Not necessary to state in body of indictment, 130. 
 
 In warrants of arrest, 157. 
 VEXATIOUS ACTIONS. 
 
 Against magistrates and justices, 12, 91, 95. 
 VIEW, TAKING A, 253. 
 WAIVER. 
 
 Of invalid service of summons, 151. 
 
 " irregularities in information, etc., 151-153. 
 
 None where there is absolute lack cf jurisdiction, 152. 
 
 Of summons altogether by appearing and pleading, 152, 153. 
 
 " irregular remand, 195, 264. 
 
 " objections not taken at trial, 155, 159, 238, 252, 257, 342, 352. 
 
 " examination on preliminary inquiry, 180, 181. 
 
 " taking depositions in writing, 259, 260. 
 " right to adjournment, 263.
 
 IXDEX. 715 
 
 WARRANT. 
 
 Of commitment, 223-225, 427, 428. 
 
 Must show authority of justice on its face, 266, 424. 
 
 " " a conviction, 311. 
 
 Of commitment, summary conviction, costs, 299-303. 
 substituting good for bad, 223, 224. 
 " deliverance, after bail furnished, 235. 
 Substituting good for bad, 311. 
 Delay in issuing, 311, 474. 
 May be issued and acted on before formal conviction or order 
 
 drawn up, 273, 295, 311. 
 For costs of Court, 311, 312. 
 Where defendant already in prison, 313. 
 Summary trials under Part XVI., commitment, 427. 
 Of arrest. 
 
 Issuing same, 139-144, 155-161, 235, 246, 247, 261. 
 Copy to be served in summary conviction case, 115, 246, 247. 
 Issuing without jurisdiction, 90. 
 " " information, 118. 
 
 " " oath to information, 118, 156, 245. 
 
 Recital of information in, 120. 
 Where offender out of jurisdiction, 140. 
 Endorsement or backing of, 140, 141, 167, 168, 247. 
 -~ Examining witnesses before issuing, 143, 144, 160. 
 A justice is not bound to issue, 143, 144, 156. 
 When it should issue, 141, 142, 144, 154. 
 Officer to have with him and produce, if required, 115. 
 Should not issue an information of mere suspicion and belief, 121, 
 
 122. 
 Must be under hand and seal of justice, 155, 156. 
 
 " " directed to and executed only by a constable, 155, 156, 161. 
 
 " contain short statement of offence, 155, 156. 
 Need not be returnable at any fixed time, 156, 169. 
 May issue, although summons already issued, 156. 
 Always in force till executed, 156, 169. 
 Must not be signed in blank, 155, 156. 
 Filling up, after signature, 157, 158. 
 Name of offender, or his description, should appear on face of, 155. 
 
 156, 157. 
 
 General warrants are void, 157, 158. 
 Must state specific offence, 158. 
 
 " follow description of offence in information, 156. 
 
 " give day and year of issue, 158. 
 Venue should be stated in margin, 157. 
 When issued by more than one justice, 158. 
 Where a justice issues illegally, 159, 160. 
 When executed by unauthorized person, 159. 
 When illegal, jurisdiction to proceed, 159, 238, 252. 
 On telegram, 160, 161, 483. 
 Protection of peace officers executing, 161. 
 Execution of, by constable, 161-166. See Arrest. 
 Signature to and execution of by justice, 155, 160.
 
 716 INDEX. 
 
 WARRANT Con tinned. 
 
 May be issued and executed on statutory holiday and Sunday, 145, 
 
 161, 162, 167. 
 
 For offences committed on high seas, 169. 
 Irregularities and variances in, 185, 265, 266. 
 For witnesses in default of appearance, 186, 189-192. 
 
 who have absconded, 226, 227. 
 
 Under provisions of Part XV. Summary Convictions, 238, 246, 247. 
 For default in recognizance, 261. 
 
 " " sureties to keep the peace, 314-316. 
 Of distress, 304-306, 309-314. 
 " remand, signature of, 200. 
 
 Search warrants and forms, see Search Warrants. 
 Forms of. 
 
 To apprehend on seas, or abroad, 559. 
 " " in first instance, 560. 
 
 when summons disobeyed, 561. 
 and carry before justice of other county, 562. 
 When witness has disobeyed summons, 563. 
 For witness in first instance, 564. 
 
 " disobeying subpoena, 565, 589. 
 
 refusing to be sworn, 565. 
 " remanding a prisoner, 566. 
 " commitment of a prisoner, 568. 
 " " " witness, 570. 
 
 on an order, 579. 
 
 for want of distress, 580, 581, 586. 
 Of deliverance on bail, 572. 
 For default in finding sureties, 583. 
 Of distress for non-payment of penalty, 577, 578. 
 on order for payment of money, 578. 
 for non-payment of costs, 581. 
 " Endorsement or backing on, 561, 582. 
 To apprehend person indicted, 591. . 
 Of commitment of person indicted, 591. 
 To detain a person who is indicted, 592. 
 Distress warrants, 577, 578, 581, 585. 
 Endorsement on distress warrant, 582. 
 WATEB. 
 
 Offences committed on, special jurisdiction, 131, 132. 
 WIFE. 
 
 (See Husband and Wife.) 
 WILFULLY. 
 
 Not included in " unlawfully," 423. 
 Equivalent to " knowingly and fraudulently," 47. 
 WITHDRAWAL OF CHARGE TO LAY NEW INFORMATION, 41, 260. 
 WITNESSES. 
 
 (See Evidence and Evidence Act.) 
 Compelling attendance of, 186-192, 246-248, 449. 
 Evidence of, to be given under oath, 201, 254. 
 Examining before issuing warrant, 118, 143, 144. 
 On preliminary inquiry, 176, 180, 181. 
 Procuring attendance of, by warrant, 190-192, 449.
 
 INDEX. 
 
 WITNESSES Continued. 
 
 Expenses of, payment of, 192. 
 
 Examination of sick and infirm, 186-188. 
 
 Proceedings against defaulting, 190-192. 
 
 In Canada out of the Province, 192, 247. 
 
 Out of Canada, examination of, 192, 193. 
 
 Refusing to be examined, or sworn, 193, 194. 
 
 Oaths administered to foreigners, 201, 202, 544. 
 
 Affirmation instead of oaths, 203, 548, 549. 
 
 Who need not be sworn, 203. 
 
 Examination of infants, 203, 204, 549. 
 " deaf mutes, 205, 544. 
 " " those having no religion, 205, 206. 
 
 Exclusion of, from Court room, 206, 264. 
 
 Who are competent and compellable, 206, 207, 538-540. 
 
 Husband and wife, as, 206, 538-540, 542. 
 
 Producing documents, 188. 
 
 Binding over to give evidence, 225, 226. 
 
 Warrant for absconding, 226, 227. 
 " defaulting, 189-192. 
 
 Discretion of magistrate to refuse, 189. 
 
 Committal in default of bail, 227. 
 
 Summons for those out of jurisdiction, 247. 
 
 Adjournment to procure, 257. 
 
 Examination of, in absence of accused, 151, 258. 
 
 Fees to, under Part XV., 359. 
 
 Examination of, on appeal, 342. 
 
 Right of accused to give evidence, 538-542. 
 
 Use of depositions taken at coroner's inquest, 541. 
 
 Disclosures during marriage, 542. 
 
 Incriminating questions, 207, 543. 
 
 Expert testimony, 207, 545. 
 
 Adverse, 546, 547. 
 
 Cross-examination of, 547-548. 
 
 Forms. 
 
 Summons to a witness, 563. 
 
 Warrants for, see Warrant. 
 
 Conviction for contempt, 564. 
 
 Deposition of, 567. 
 
 Recognizance to give evidence, 569, 570. 
 
 Order discharging, when accused discharged, 570. 
 WRIT OF FIERI FACIAS. 
 
 Form of, 594. 
 YUKON TERRITORY. 
 
 Justices of the peace and magistrates in, 28, 29. 
 
 Royal North-West Mounted Police, in, 29, 30.
 
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