trate

Appeal from two justices on theft charges under $10 or disorderly house charge]—Although Code sec. 771 interprets the word “magisin Part XVI as including in certain provinces, "two justices," if does not follow that the words two justices in sec. 797 (relating to appeals from certain summary trials before two justices) shall be interpreted as including a police magistrate having the power of two justices. R. v. Berenstein, (1917) 24 B.C.R. 361; R. v. Brown (1916) 10 W.W.R. 695, 9 Alta. L.R. 494, 26 Can. Cr. Cas. 97 (Alta.); R, v. Merker and Daniels, 37 O.L.R. 582, 27 Can. Cr. Cas. 113. The legislative intention in the amendment of sec. 797 was to withdraw the right of appeal for offences specified in sub-secs. (a) and (f) of sec. 773 where the conviction had been made by a district judge or a police magistrate and to retain it only where the conviction had been made by two justices of the peace. R. v. Brown, supra; R. v. Berenstein, supra; and see R. v. Robertson (1915) 22 B.C.R. 13, 26 Can. Cr. Cas. 236; R. v. Dubuc, (1914) 22 Can. Cr. Cas. 426.

Cases under prior law; R. v. McLennan (No. 2), 10 Can, Cr. Cas, 14; R. v. Pisoni, 6 Terr. L.R. 238.

Oral testimony is admissible to prove that the conviction appealed against is erroneously dated, and that an appeal taken therefrom under sec. 797 was not, in fact, too late, as it would appear to be because of the error. R. v. Martinuik (1914) 6 W.W.R. 405, 22 Can. Or. Cas. 275 (Sask.). Bail pending appeal]-Code sec. 750 (c) provides for bail if given within the time limited for filing a notice to appeal. Presumably after the expiration of that time bail might still be granted on a habeas corpus by a superior court judge if he saw fit to grant it. R. v. Sands, 9 W.W.R. 129, 131.

An irregularity in accepting cash bail instead of a recognizance where a recognizance is required, has been held not to be fatal to the appeal where the course adopted was assented to by the prosecution. Robinson v. Saanich, 20 W.L.R. 235, 20 Can. Cr. Cas. 241 (B.C.).

Submission to jurisdiction]-Where an appeal is permitted under Code sec. 797, from a conviction for keeping a common bawdy-house and the accused takes the appeal to the district court, the latter court acquires jurisdiction over the person of the appellant and may proceed to a re-hearing "upon the merits," notwithstanding defendant's objec tion that the magistrate had no jurisdiction because the arrest was illegally made without a warrant. R. v. Miller, 25 Can. Cr. Cas. 151, 25 W.L.R. 296.

Procedure on appeal]-See Code sec. 749 et seq.

Conviction removed by certiorari not to be held invalid for irregularity and may be amended as on appeal]-Code sec. 1124.

Part XV or provisions as to preliminary inquiries not to apply. 798. Except as specially provided for in the two last preceding sections, neither the provisions of this Act relating to

preliminary inquiries before justices, nor of Part XV, shall apply to any proceedings under this Part.

Origin]-Sec. 808, Code of 1892; R.S.C. 1886, ch. 176, sec. 34.

“Any proceedings" under Part XVI]—A proceeding to enforce a penalty imposed by the magistrate, that is the imposition of imprisonment in default of payment, is a "proceeding" within the meaning of this section. R. v. Davidson (No. 1), [1917] 2 W.W.R. 160, 162, 11 Alta. L.R. 9, 28 Can. Cr. Cas. 44.

Depositions need not be read over before defence]-Sec. 798 of the Code relieves the magistrate holding a summary trial under Part XVI from the duty of reading the depositions to the witnesses before the accused enters on his defence. R. v. Klein, 15 B.C.R. 165, 16 Can. Cr. Cas. 501.

Constables' tariff]-The constables' tariff under Part XV, see sec. 770, was amended by the 1917 Can. Stat., ch. 14, sec. 5, so as to include various items specially concerning summary trial proceedings under Part XVI, and sec. 798 must be read subject to the later enactment.

Forms.

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.

Origin]-Sec. 807, Code of 1892.

Form of conviction]-Code form 55, following sec. 1152.

Form of conviction upon a plea of guilty]—Code form 56, following sec. 1152.

Form of certificate of dismissal]—Code form 57, following sec. 1152.

PART XVII.

TRIAL OF JUVENILE OFFENDERS FOR INDICTABLE OFFENCES.

Definitions.

Interpretation.

800. In this Part, unless the context otherwise requires,(a) two or more justices,' or 'the justices,' includes,

(i) in the provinces of Ontario and Manitoba, any judge of the county court being a justice, police magistrate or stipendiary magistrate, or any two justices, acting within the limits of their respective jurisdictions,

(ii) in the province of Quebec, any two or more jus

tices, the sheriff of any district, except Montreal and Quebec, the deputy sheriff of Gaspé, and any recorder, judge of the sessions of the peace, police magistrate, district magistrate or stipendiary magistrate, acting within the limits of their respective jurisdictions,

(iii) in the provinces of Nova Scotia, New Brunswick, Prince Edward Island and British Columbia, any functionary or tribunal invested by the proper legislative authority with power to do acts usually required to be done by two or more 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 justices 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, and

(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;

(b) the common gaol or other place of confinement' includes any reformatory 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. Origin]-6-7 Edw. VII, Can., ch. 45, sec. 6; sec. 809, Code of 1892; R.S.C. 1886, ch. 177, sec. 2.

Application of Part.

Not to apply to certain offences in B.C. or P.E.I.

801. The provisions of this Part shall not apply to any offence committed in the province of British Columbia or Prince Edward Island, punishable by imprisonment for two years and upwards; and in such provinces it shall not be necessary to transmit any recognizance to the clerk of the peace or other proper officer.

Origin] Sec. 829, Code of 1892; R.S.C. 1886, ch. 177, sec. 30.

Jurisdiction,

Theft by person not over sixteen.

802. Every person charged with having committed, or having attempted to commit any offence which is theft, or punishable as theft, and whose age, at the period of the commission or attempted commission of such offence, does not, in the opinion of the justice before whom he is brought or appears, exceed the age of sixteen years, shall, upon conviction thereof in open court, upon his own confession or upon proof, before any two or more justices, be committed to the common gaol or other place of confinement within the jurisdiction of such justices, there to be

imprisoned, with or without hard labour, for any term not exceeding three months, or, in the discretion of such justices, shall forfeit and pay such sum, not exceeding twenty dollars, as such justices adjudge.

"

Origin]-Sec. 810, Code of 1892; R.S.C. 1886, ch. 177, sec. 3.

Theft] The term "theft" as used in the Code has an enlarged statutory meaning more extensive than the common law term of "larceny"; see, secs. 344-357.

"Two or more justices "]-See definition in sec. 800.

Place of imprisonment]-See the exception in 803 applicable to Ontario.

Juveniles to be tried without publicity]—See sec. 644, and where a juvenile court has been established see sec. 10 of the Juvenile Delinquents Act, 1908.

Children's Aid Societies in Ontario]-Notice of the charge is to be given in Ontario to the Children's Aid Society, if there be one in the county, wherever an information is laid against a boy under 12 or a girl under 13, and an opportunity is to be given the Society for investigation. The Prisons Act, R.S.C. 1906, ch. 148.

No imprisonment in reformatory in Ontario.

h.

803. The provisions of this Part shall not authorize two or more justices to sentence offenders to imprisonment in a reformatory in the province of Ontario.

Origin]-Sec. 830, Code of 1892; R.S.C. 1886, ch. 177, see. 30.

Not to prevent summary conviction.

804. Nothing in this Part shall prevent the summary conviction of any person who may be tried thereunder before one or more justices, for any offence for which he is liable to be so convicted under any other Part of this Act or under any other Act.

Origin]-Sec. 831, Code of 1892; R.S.C. 1886, ch. 177, sec. 8.

What offences are theft or punishable as theft and triable under Part XV]-Code secs. 374, 375, 376, 377, 401.

Under any other Act]-See the Juvenile Delinquents Act, 7-8 Edw. VII, ch. 40, as amended, 2 Geo. V, ch. 30 and 4-5 Geo. V, ch. 39.