The

Where on a habeas corpus application the magistrate is directed by an order to return the proceedings relating to the imprisonment and thereupon returns under such 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. mere fact of judicial proceedings before inferior tribunals being on the files of a superior court certified or verified for use as evidence by the same officer who would make the return to a writ of certiorari to bring them up, does not bring the matter or cause into the superior court. R. v. MacDonald (No. 2) (1901), 5 Can. Cr. Cas. 279.

In discharging a prisoner in habeas corpus proceedings under ch. 181, Revised Statutes of Nova Scotia, an order of protection in respect of a civil action by 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 Can. Cr. Cas. 494 (N.S.). But see R. v. Horton (1897), 3 Can. Cr. Cas. 84 and Ex p. Quirke (1896), 32 C.L.J. 779.

An application for the prisoner's discharge on the return of a writ of habeas corpus may after refusal by one judge in chambers, be renewed before another judge in chambers, and the latter may grant a discharge notwithstanding its refusal by a judge of co-ordinate jurisdiction. The King v. Laura Carter, 5 Can. Cr. Cas. 401; R. v. McKenzie, 2 R. & G. 481; Re J. W. Black, Cong. Dig. 614.

In Ontario.]-As to criminal proceedings the habeas corpus Acts in force in Ontario appear to be the Imperial statute, 31 Car. II., which was with the English Criminal Law by the "Quebec Act, 1774," and the statute of the late Province of Canada, 29 & 30 Vict., ch. 45 (which applied only to Upper Canada). As the latter statute has not been repealed, and was passed before Confederation, it is in force in Ontario regarding matters of criminal law over which the Dominion Parliament now has jurisdiction, without regard to the fact that it was included in the subsequent revisions of the Ontario statutes, or to any changes made by the latter statute, and except in so far as impliedly repealed by the Criminal Code. 1 Can. Cr. Cas. 213.

It was embodied in the Revised Statutes of 1877, ch. 70, and is now included in R.S.O. 1897, as ch. 83.

Its effect is to extend the remedy to non-criminal matters and to vary the practice under the statute of Charles.

Section 6 of the statute 29-30 Vict. (1866), ch. 45, enacted that, "In case any person confined or restrained of his or her liberty as aforesaid shall be brought before the court in term time upon a writ of habeas corpus, and shall be remanded to custody again upon the original order or warrant of commitment, or by virtue of any warrant, order or rule of such court, it shall and may be lawful for such person to appeal from the decision or judgment of the said court to the Court of Error and Appeal (now the Court of Appeal); and it shall be the duty of the clerk of the court whose decision or judgment shall be appealed from, upon notice to be given by or on behalf of the person so remanded to custody, to certify under the seal of the court the writ of habeas corpus, the return thereto and all and singular the affidavits, depositions, evidence, conviction and other proceedings returned to or had before the said court unto the Court of Error and Appeal; and the said Court of Error and Appeal shall thereupon hear and determine the said appeal without any formal pleadings whatever; and if the said Court of Error and Appeal shall adjudge or determine that such confinement or restraint is illegal, such court shall certify the same under the seal of the said court to the person or persons having the custody or charge of the person so confined or restrained and shall order his immediate discharge and he shall be discharged accordingly."

This section was by the next following section (7) made applicable to all writs of habeas corpus awarded under the Act of Charles or otherwise, "in as ample and beneficial a manner as if such writs and the said cases arising thereon had been hereinbefore specially named and provided for respectively."

The Ontario practice under these sections has been to allow appeals direct to the Court of Appeal whether the order of remand were made in chambers or in term.

In the Ontario Habeas Corpus Act (29-30 Vict. (1866), ch. 45), was taken from the Habeas Corpus Act of 56 Geo. III., ch. 100 (1816). R. v. St. Clair (1900), 3 Can. Cr. Cas. 551, 27 A.R. 310; In re Melina Trepanier (1885), 12 Can. S.C.R. 111, and R. v. Mosier (1867), 4 Ont. Pr. 64.

In Ontario it has been held that the fact that in the margin of the writ of habeas corpus it was marked "per 33, Car. II." does not prevent the judge from acting under either the Ontario Habeas Corpus Act or at common law. R. v. Arscott (1885), 9 O.R. 541.

After serving the writ of habeas corpus a notice of application for the discharge of the prisoner must be served on the Attorney-General of the province.

The Ontario Habeas Corpus Act, R.S.O. 1897, ch. 83, sec. 5, 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 regular in form. A clerical error in dating the warrant of commitment as of the date preceding the date of the information is a matter for amendment and is not a ground for discharge where a conviction regular in form is returned. R. v. Farrell (1907), 12 Can. Cr. Cas. 524, 15 O.L.R. 100.

Where a prisoner is entitled to his discharge, under a writ of habeas corpus, by reason of no offence being disclosed in the material under which he was committed, such discharge cannot be made conditional on no action being brought against the magistrate, or other person in respect of the conviction, or anything done thereunder. R. v. Lowery (1907), 15 O.L.R. 182, 13 Can. Cr. Cas. 105.

In Quebec.]—In the Province of Quebec, when there is a judge duly authorized then within the limits of the judicial district in which the applicant for a writ of habeas corpus is imprisoned on a criminal charge, a judge sitting in another district has no jurisdiction to entertain the application even on the consent of the Crown. The Court of King's Bench sitting in appeal either at Montreal or Quebec has jurisdiction to grant a writ of habeas corpus in respect of a prisoner confined in any district within the division for which the sittings are being held. Ex parte Tremblay (1902), 6 Can. Cr. Cas. 147, 11 Que. K.B. 454.

The judges of the Quebec Superior Court of the district or division where a person is imprisoned have jurisdiction over a petition for habeas corpus. The remedy by habeas corpus not being open to one who is imprisoned under the sentence of a competent court having general jurisdic tion of the case, he cannot, on the return of a warrant shewing such sentence, demand an ancillary writ of certiorari for the production of the record in the case in which the sentence was pronounced. Ex parte Goldsberry, 10 Can. Cr. Cas. 392.

Degrees in 1028. Whenever it is provided that the offender shall be punishment. 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 discretion of the court or tribunal Discretion. before which the conviction takes place. 55-56 V., c. 29, s. 932.

Sentence of imprisonment.]-Section 3 of the Prisons and Reformatories Act, R.S.C. 1906, ch. 148, is as follows: "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."

Presence of accused.]—The rule at common law is that when any corporal punishment is to be inflicted the defendant must be personally_before the court at the time of pronouneing the sentence. 25 Am. & Eng. Encyc., 2nd ed., 296; Rex v. Harris, 1 Ld. Raym. 267; Reg. v. Templeman, 1 Salk. 56.

It would seem that a person convicted of felony could not waive his right to be present in court at the time of pronouncing sentence, and that it was error to render sentence in his absence, though such absence was voluntary or wilful. Reg. v. Williams, 18 W.R. 806.

When a fine only is to be imposed it is discretionary with the court to require the presence of the defendant when sentence is rendered. Reg. v. Templeman, 1 Salk. 56; Duke's Case, 1 Salk. 400; Rex v. Hann, 3 Burr. 1786. There is the same discretion though the offence is punishable by fine or imprisonment or both in the discretion of the court. Reg. v. Kinglake, 18 W.R. 806.

Amending sentence.]—Ordinarily the trial court may at any time during the term at which the sentence was rendered and before execution has begun, amend or vacate the sentence and render a new sentence in accordance with law. Reg. v. Fitzgerald, 1 Salk. 401; Rex v. Price, 6 East 323; Rex v. Leicestershire, 1 M. & S. 442. And even though the execution of the sentence has already commenced, the court may at any time during the term at which the sentence was rendered, modify it by remitting part of the punishment.

Sentence on separate counts.]—The object of permitting several distinct offences to be charged in the same indictment by means of separate counts, is to avert from both parties the burden of two or more trials by permitting them to be tried together. When this has been done the court may proceed to sentence as if the defendant had had a separate trial for each offence.

Where the different counts in an indictment refer to and charge the same offence the practice is either to render sentence on each count to run concurrently (Archbold's Crim. Pldg., 13th ed., 62), or to render a single sentence upon all the counts for the entire offence. Ryalls v. Reg., 11 Q.B. 795, 3 Cox C.C. 254; O'Brien v. Reg., 2 Cox C.C. 122.

Discretionary power to remit punishment.]-It was held in R. v. Robidoux (1898), 2 Can. Cr. Caş. 19 (Que.), that by virtue of sec. 1028, where 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 or both, unless the statute declares a contrary intention and expressly overrides the general rule contained in this section. Ex parte Kent, 7 Can. Cr. Cas. 447 (N.S.) is to the same effect. Section 1028 applies as well to summary convictions as to proceedings in respect of indictable offences. Ibid.

1029. Whenever a fine may be awarded or a penalty im- Fine or posed for any offence, the amount of such fine or penalty shall, penalty in

discretion

of court.

Outlawry.

Solitary confinement or pillory.

Deodand.

Attainder.

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. 55-56 V., c. 29, s. 934.

Punishments Abolished.

1030. Outlawry in criminal cases is abolished. c. 29, s. 962.

55-56 V.,

55-56 V., c. 29,

1031. The punishment of solitary confinement or of the pillory shall not be awarded by any court. s. 963.

1032. There shall be no forfeiture of any chattels, which have moved to or caused the death of any human being, in respect of such death. 55-56 V., c. 29, s. 964.

1033. No confession, verdict, inquest, conviction or judgment of or for any treason or indictable offence or felo de se shall cause any attainder or corruption of blood, or any forfeiture or escheat: Provided that nothing in this section shall Penalty. affect any penalty or fine imposed on any person by virtue of Forfeiture. his sentence, or any forfeiture in relation to which special provision is made by any Act of the Parliament of Canada. 55-56 V., c. 29, s. 965.

Conviction

of public official vacates office.

Official

incompetent until pun

ishment

Disabilities.

1034. If any person hereafter convicted of treason or any indictable offence for which he is sentenced to death, or imprisonment for a term exceeding five years, holds at the time of such conviction any office under the Crown or other public employment, or is entitled to any pension or superannuation allowance payable by the public, or out of any public fund, such office or employment shall forthwith become vacant, and such pension or superannuation allowance or emolument shall forthwith determine and cease to be payable, unless such person receives a free pardon from His Majesty, within two months after such conviction, or before the filling up of such office or employment, if given at a later period.

2. Every such person sentenced to imprisonment as aforesaid or on whom sentence of death has been passed which has been commuted to imprisonment, shall become, and, until he under

goes the imprisonment aforesaid or suffers such other punish- undergone ment as by competent authority is substituted for the same, or or pardon. receives a free pardon from His Majesty, shall continue incapable of holding any office under the Crown, or other public employment, or of being elected, or sitting, or voting, as a member of either House of Parliament, or of exercising any right of suffrage or other parliamentary or municipal franchise.

3. The setting aside of a conviction by competent authority Removing shall remove the disability by this section imposed. 55-56 V., disability. c. 29, s. 961.

Fines and Forfeitures.

lieu of other punishment.

1035. Any person convicted by any magistrate under Part Fines in 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.

addition

2. Any person convicted of an indictable offence punishable Fines in with imprisonment for more than five years may be fined, in to other addition to, but not in lieu of, any punishment otherwise punishment. ordered, and in such case, also, the sentence may in like manner direct imprisonment in default of payment of any fine imposed. 63-64 V., c. 46, s. 3.

Magistrate.]-The word "magistrate" here includes the functionaries so designated by Code sec. 771.

Fine in addition to imprisonment.]-The second sub-section introduced in 1900 was designed especially for the Yukon Territory where the expense of maintaining long term prisoners is large.

Common law.]-In all cases of misdemeanour the court might, by the common law, add to the sentence of imprisonment, by ordering the defendant to find security for his good behaviour and for keeping the peace, and might order him to be imprisoned until such security were found. R. v. Dunn, 12 Q.B. 1026.

feitures go

1036. Whenever no other provision is made by any law of Fines, penalCanada for the application of any fine, penalty or forfeiture ties and forimposed for the violation of any law or of the proceeds to provincial of an estreated recognizance, the same shall be paid over by the treasurer. magistrate or officer receiving the same to the treasurer of the province in which the same is imposed or recovered, to be by