Accessories after the

fact in certain cases.

20. A charge of conspiracy the particulars of which severally allege that the accused conspired to defraud a candidate at an election to the Saskatchewan Legislature, the electors of the division and the public, by illegally obtaining the return of the opposing candidate, does not disclose an offence under sec. 573, for the acts alleged as the object of the conspiracy do not constitute an indictable offence either by statute or at common law. Ibid.

Particulars.]-Particulars furnished under sec. 859 of the Code have not the effect of amending or extending the scope of the original indictment or charge, and the inclusion of a separate and distinct offence as a particular under a charge of conspiracy will not authorize a conviction which would otherwise not be within the scope of the indictment. R. v. Sinclair (1906), 12 Can. Cr. Cas. 20.

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. Where at the trial of such an indictment the name of one of the alleged co-conspirators is for the first time disclosed in the testimony of a Crown witness, that information may then be added to the statement of particulars of the indictment. R. v. Johnston, 6 Can. Cr. Cas. 232.

Trade combine conspiracies.]-See sec. 498.

Treasonable conspiracies.]-See sec. 75.

Conspiracy to defile.]-See sec. 218.

Conspiracy to defraud.]-See sec. 444 and note to same.

Conspiracy to bring false accusation.]-See sec. 178.

Extradition.]-Conspiracy to defraud is in itself not an extraditable offence between Canada and the United States, but extradition will lie as for a separate crime in respect of an overt act of a conspiracy which constitutes one of the crimes mentioned in the extradition arrangement. United States v. Gaynor; Re Gaynor and Greene (No. 3), 9 Can. Cr. Cas. 205.

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 conviction, imprisonment for life, or for fourteen years, or for any term longer than fourteen years. 55-56 V., c. 29, s. 531.

Accessory after the fact.]-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. Section 71. But no married person whose husband or wife has been a party to an offence shall become an accessory after the fact thereto by receiving, comforting or assisting the other of them, and no married · woman whose husband has been a party to an offence shall become 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. Section 71 (2).

At common law the term accessory after the fact only applied to felonies for in misdemeanours all were principals. R. v. Tisdale, 20 U.C.Q.B. 273; R. v. Campbell, 18 U.C.Q.B. 417; R. v. Benjamin, 4 U.C.C.P. 189.

Where the power of a court of general or quarter sessions is excluded, as to which see sec. 583, such court has no jurisdiction to try a charge of being accessory after the fact to such offence. Section 583.

An accessory after the fact may be indicted whether the principal offender has or has not been indicted or convicted, or is or is not amenable to justice; and such accessory may be indicted either alone as for a substantive offence or jointly with such principal. Section 849 (1).

Where an indictment contains two counts, one charging the accused as a principal offender and the other charging him with being an accessory after the fact to the same offence, the prosecution will be compelled to elect upon which count they will proceed. R. v. Brannon (1880), 14 Cox C.C. 394.

Where several persons are tried upon one indictment, some as principals in murder, others as accessory after the fact to the murder, and the principals are convicted of manslaughter only, the prisoners charged as accessories after the fact may be convicted on the same indictment as such accessories to the manslaughter. R. v. Richards (1877), 2 Q.B.D. 311, 13 Cox C.C. 611.

But on an indictment charging a man with the principal offence only, he cannot be convicted thereunder of being an accessory after the fact. R. v. Fallon (1862), L. & C. 217, 32 L.J.M.C. 66; Richards v. R. (1897), 61 J.P. 389.

Evidence.]-See note to sec. 71.

Indictment.]-Every one charged with being an accessory after the fact to any offence may be indicted, whether the principal offender has or has not been indicted or convicted, or is or is not amenable to justice, and such accessory may be indicted either alone as for a substantive offence or jointly with such principal. Code sec. 849.

575. Every one who is accessory after the fact to any Accessories indictable offence for committing which the longest term to after the fact in which the offender can be sentenced is less than fourteen years, other cases. 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 accessory may be sentenced. 55-56 V., c. 29, s. 532.

Accessories after the fact.]-See secs. 71, 531 and 849.

Power to

PART XI.

JURISDICTION.

Rules of Court.

576. Every superior court of criminal jurisdiction may at make rules. any time, with the concurrence of a majority of the judges thereof present at any meeting held for the purpose, make rules of court, not inconsistent with any statute of Canada, which shall apply to all proceedings relating to any prosecution, proceeding or action instituted in relation to any matter of a criminal nature, or resulting from or incidental to any such matter, and in particular,

Regulating sittings.

Regulating practice.

General.

To be laid

before Par

(a) for regulating the sittings of the court or of any division thereof, or of any judge of the court sitting in chambers, except in so far as the same are already regulated by law; (b) for regulating in criminal matters the pleading, practice and procedure in the court, including the subjects of mandamus, certiorari, habeas corpus, prohibition, quo warranto, bail and costs, and 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 proceeding before him; and,

(c) generally for regulating the duties of the officers of the court and every other matter deemed expedient for better attaining the ends of justice and carrying the provisions of the law into effect.

2. Copies of all rules made under the authority of this section shall be laid before both Houses of Parliament at the liament, etc. session next after the making thereof, and shall also be published in the Canada Gazette.

Authority in Ontario for making.

3. In the province of Ontario the authority for the making of rules of court applicable to superior courts of criminal jurisdiction in the province is vested in the supreme court of judicature, and such rules may be made by the said court at any time with the concurrence of a majority of the judges thereof present at a meeting held for the purpose. 55-56 V., c. 29, s. 533; 63-64 V., c. 46, s. 3.

Criminal matters.]-The term "criminal matters," has been held to include a matter in the result of which the party may be fined or imprisoned: Seaman v. Burley, [1896] 2 Q.B. 344; R. v. Fletcher, 2 Q.B.D. 47.

Certiorari.]-Certiorari in respect of convictions under the Criminal Code is by this section treated as a matter of criminal law and not of civil procedure; although the recovery upon recognizance after estreat of bail in a criminal case has been held to be merely a civil proceeding. Re Talbot's Bail (1892), 23 O.R. 65.

Code sec. 1126 contains a special provision authorizing the passing of rules of court requiring a recognizance in security for costs to be filed as a condition of hearing a motion to quash a summary conviction. And Code sec. 1096 regulates the enforcement of such recognizances by introducing the practice, which prevailed under the Imperial statute 5 Geo. II., ch. 9, which was repealed by 49 Vict., ch. 49 (see R.S.C. 1886, ch. 178, sec. 91 and sec. 893 of the Code of 1892). The provisions now embodied in sec. 1126 of the present Code were then substituted for the Imperial Act. It has been held that a rule of court passed in Ontario under the statute of 49 Vict., ch. 49, sec. 6, remains in force as a rule under the Code without being re-passed. R. v. Robinet (1894), 2 Can. Cr. Cas. 382 Ont.).

Stated case in summary convictions.]—An application to a justice for a stated case in a summary conviction matter 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 under section 576 Code sec. 761 (2).

In British Columbia.]-In the province of British Columbia rules and orders of court have been passed under this section, known as the Supreme Court Rules, 1896 (Crown side), and the same appear in The Canada Gazette (1900), vol. 33, p. 2110. They are adapted principally from the English Crown Office Rules of 1886. Where no other provision is made in the Rules the former procedure and practice remains in force, and as to matters not provided for, the practice shall, as far as may be, be regulated by analogy to such rules. B.C. Crown Rules (1896), No. 65.

In Ontario.]-Rules of Court have recently been passed in Ontario, 27 March, 1908, governing certiorari practice in criminal matters and numbered 1279 to 1288 inclusive in the Ontario Consolidated Rules. They are, however, not to take effect until confirmed by Dominion Statute, for which purpose it is expected that an amendment of the Code to be known as sec. 576A will be passed during the 1908 session. These rules are set out in a note to Code sec. 1126.

Rule 1238 provides that, "the costs of and incidental to proceedings in the Court of Appeal for Ontario and in the High Court of Justice for Ontario and in any Divisional Court thereof, for or in relation to the quashing of convictions or orders shall be in the discretion of the court, and the court shall have power to determine and direct by whom and to what extent the same shall be paid, whether the conviction or order is affirmed or quashed in whole or in part."

Previously in Rex v. Bennett (1902), 5 Can. Cr. Cas. 456, 4 O.L.R. 205, the Divisional Court had held that on a motion to quash a summary conviction in a criminal matter under Dominion legislation, no jurisdiction is conferred on the High Court of Justice to give costs to the applicant against the prosecutor or magistrate.

It seems still open to question whether such jurisdiction can be acquired under a rule of court passed under Code sec. 576, and whether the terms of this section of the Code are wide enough to include and validate in its entirety the terms of Ontario Rule 1238 as a mere "regulation" of 29-CRIM. CODE.

practice. On the introduction of the Criminal Code of 1892 a special provision was made as to Ontario (sec. 754 of the original Code), and this is continued in the present statute as sec. 599.

It provides that "the practice and procedure in all criminal cases and matters in the High Court of Justice of Ontario which are not provided for by this Act, shall be the same as the practice and procedure in similar cases and matters heretofore." Code sec. 599.

In Nova Scotia.]-The Crown Rules in force in Nova Scotia were passed in 1901.

In Quebec.]-No Crown Rules have been passed in Quebec under the Criminal Code. ̧

Certiorari practice in British Columbia.]-The British Columbia "Crown Rules, 1896," make the following provisions in regard to certiorari practice in that province:

2. Every application 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 summons to shew cause; unless, in the opinion of the judge, the writ should issue forthwith, in which case the order may be made absolute; or an order be made in the first instance either ex parte, or otherwise, as the judge may direct.

3. No writ of certiorari shall be granted, issued, or allowed, to remove any judgment, conviction, order, or other proceeding had or made before any justice or justices of the peace unless such writ be applied for within six calendar months after such judgment, conviction, order, or other proceedings shall be so had 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 two of them if more than one, by and before whom such judgment, order, conviction, or other proceedings 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, Appendix J, of the "Supreme Court Rules, 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 judgment, 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 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.