Suspension of sentence by court when im not more than two years. Suspended Sentence. 1081. 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 prisonment 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 punishment, 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. When more than two years. Special such cases. 2. Where the offence is punishable with more than two years' imprisonment 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. 3. The court may, if it thinks fit, direct that the offender directions in shall pay the costs of the prosecution, or some portion of the same, within such period and by such instalments as the court directs. 63-64 V., c. 46, s. 3. Suspended sentence.]-Section 1082 (taken from 52 Vict., ch. 44. sec. 4) provides that the court, before directing the release of an offender under sec. 1081, shall be satisfied that the offender 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 subjects to which regard is to be had in considering a release on suspended sentence under sec. 1081 in cases of first conviction are: (1) the age of the offender; (2) his character; (3) his antecedents; (4) trivial nature of the offence; (5) any extenuating circumstances under which the offence was committed. It seems that while these are joined by the conjunctive "and," the age of the offender and the trivial nature of the offence are to be regarded as alternative extenuating circumstances. 56 J.P. 330. A court trying an offender upon an indictment might, at common law, postpone the judgment or sentence of the court until a future date, such postponement being known as a respite. Keen v. The Queen, 10 Q.B. 928. This was done when a case was stated for the court for crown cases reserved, or where the court, having regard to the nature of the offence, or the antecedents or mental or physical condition of the convict, desired to defer sentence. Archbold's Crim. Pleading (1900), 206. It was common to put the offender under recognizance to come up for judgment when called upon, coupled in some cases with an undertaking not to offend again. The offender, if he offends again, may be called up and sentenced on the first conviction, instead of being tried for the subsequent charge. R. v. Ryan, 7 Cox 109; Archbold Cr. Pldg. 206. The procedure for dealing with the offender in case of default upon his recognizance is laid down in Code sec. 973. Where after a summary trial the accused is convicted but is released on suspended sentence and a recognizance is taken binding the accused to keep the peace and be of good behaviour, the magistrate has no jurisdiction to impose sentence without an information under oath charging a breach of the recognizance (Code sec. 1083). R. v. Siteman (1902), 6 Can. Cr. Cas. 224 (N.S.). Two years' imprisonment.]-In R. v. McLennan (No. 1) (1905), 10 Can. Cr. Cas. 1, it appears to have been considered that an offence "punishable with not more than two years' imprisonment" under the first sub-section meant an offence so punishable before the court or magistrate actually trying the charge. It is submitted that the section refers to the maximum penalty which the law imposes for the offence, although the magistrate exercising a power of summary trial may on account of the special jurisdiction conferred on him be restricted to a sentence less than two years, and that where such maximum exceeds two years the concurrence of the Crown counsel is necessary under sub-sec. (2). See note 10 Can. Cr. Cas. 10-13. "Court."]-The "court" in sec. 1081 means, unless the context otherwise requires, any superior court of criminal jurisdiction, any judge or court exercising the "speedy trials" jurisdiction and any magistrate exercising the "summary trials" jurisdiction. Code sec. 1026. Juveniles.]-There is also the power under the "juvenile offenders" clauses (Code secs. 800-821), to dismiss the accused if the justices upon the hearing of a case against a juvenile offender under sixteen years of age, consider it inexpedient to inflict any punishment. Code sec. 813. Costs.]-Where the person convicted upon a summary trial is released upon suspended sentence and is directed to pay the informant's costs, such costs are payable forthwith unless otherwise ordered. The power under this section to award such costs to be paid "within such period and by such instalments as the court directs" does not make it necessary to divide the costs into instalments. R. v. McLennan (No. 1) (1905), 10 Can. Cr. Cas. 1. Previous conviction.]-The proper time for taking evidence of a previous conviction to exclude a magistrate's jurisdiction to release on suspended sentence is after the finding of guilty on the present charge and not during the hearing of the charge. If the Crown does not adduce evidence of a previous conviction, the magistrate may, on his own initiative. call for the records under his own control and custody and hold an enquiry upon the question whether the defendant had been previously convicted before him and on the questions of identity, age and antecedents of the defendant for the purpose of considering the appropriate punishment or a release on suspended sentence where the latter is permissible. Semble, if the magistrate recollects that the person convicted before him was previously convicted before him he should proceed with such an enquiry, although the Crown counsel was content to allow the accused to go on suspended sentence. The King v. Bonnevie, 10 Can. Cr. Cas. 376. 1082. The court, before directing the release of an offender Conditions under the last preceding section, shall be satisfied that the of release. Warrant when recog observed. offender 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. 55-56 V., c. 29, s. 972. 1083. If a court having power to deal with such offender in nizance not 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 recognizance, such court or justice may issue a warrant for his apprehension. On arrest, remand for judgment. Committal. To be brought before court. 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 recognizance 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. 55-56 V., c. 29, s. 973. Where a release on suspended sentence was in respect of a conviction for keeping a disorderly house, the fact that the accused had again been brought before the same magistrate on a similar charge which, however, was not substantiated, does not give the magistrate jurisdiction to impose the sentence which had been suspended in respect of the first charge. And, semble, a proceeding under sec. 1083 to bring up for sentence an accused person who had been released on suspended sentence, can only be taken at the instance of the Crown. R. v. Siteman (1902), 6 Can. Cr. Cas. 224. Where the jury convicted the defendant and the verdict was recorded and the offender was, by order of the court, released on bail to appear for judgment, it is only upon motion by the Crown that the recognizance of the defendant and his bail can be estreated in Ontario or that judgment can be moved against the offender. R. v. Young (1901), 4 Can. Cr. Cas. 580 (Ont.). A contract by the accused to indemnify a surety against liability under his recognizance is illegal; but where a deposit of money is made by the accused with the surety by way of indemnity, the accused cannot recover it back. Herman v. Jenchner, 15 Q.B.D. 561. Remitting Penalties. may remit. 1084. The Governor in Council may at any time remit, in Governor whole or in part, any pecuniary penalty, fine or forfeiture in Council imposed by any Act of the Parliament of Canada, whether such penalty, fine or forfeiture is payable to His Majesty or to some other person, or in part to His Majesty and in part to some other person, and whether it is recoverable on indictment, information or summary conviction, or by action or otherwise. 2 E. VII., c. 26, s. 1. 1085. Such remission may, in the discretion of the Gover- Terms of nor in Council, be on terms as to the payment of costs or remission. otherwise: Provided that where proceedings have been insti tuted by private persons costs already incurred shall not be Costs. remitted. 2 E. VII., c. 26, s. 2. Definition. PART XXI. RENDER BY SURETIES AND RECOGNIZANCES. Interpretation. 1086. In the sections of this Part relating exclusively to the province of Quebec, unless the context otherwise requires, 'Cognizor.' 'cognizor' includes any number of cognizors in the recogniz ance whether as principals or sureties. 55-56 V., c. 29, s. 926. Certain sec tions apply only to Quebec, and others not to Quebec. Render of accused by surety. Arrest by sureties. Bail after render. Division of Part. 1087. Sections ten hundred and eighty-eight to eleven hundred and one inclusive are general in their application. Sections eleven hundred and two to eleven hundred and twelve inclusive do not apply to the province of Quebec. Sections eleven hundred and thirteen to eleven hundred and nineteen inclusive apply to the province of Quebec only. 55-56 V., c. 29, 's. 926. General. 1088. Any surety for any person charged with any indictable offence may, upon affidavit showing the grounds therefor, with a certified copy of the recognizance, obtain from a judge of a superior court or from a judge of a county court having criminal jurisdiction, or in the province of Quebec from a district magistrate, an order in writing under his hand, to render such person to the common gaol of the county where the offence is to be tried. 2. The sureties, under such order, may arrest such person and deliver him, with the order, to the gaoler named therein, who shall receive and imprison him in the said gaol, and shall be charged with the keeping of such person until he is discharged by due course of law. 55-56 V., c. 29, s. 910. Right of speedy trial.]-See secs. 825-827. 1089. The person rendered may apply to a judge of a superior court, or in cases in which a judge of a county court |