Young, R. v., (1906) 13 Can. Cr. Cas. 211

542

885

CORRIGENDA.

Page 23, line 12 (date of case cited), for "1895" read "1885."

46

583, line 28, correct the name of case cited to read "R. v. Doherty, 3 Can. Cr. Cas. 505."

46

697, correct the second citation of R. v. Buchanan to read "12 Man. R. 190."

756, correct date of citation, R. v. Spence, to read "1855."

66

66

777, correct citation of R. v. Nicholls, to read "10 Cox C.C. 476."

877, correct citation of R. v. Hoggard, to read "30 U.C.Q.B. 152."

THE CANADIAN CRIMINAL CODE

AND THE

LAW OF CRIMINAL EVIDENCE

APPLICABLE THERETO.

THE CRIMINAL CODE.

(Revised Statutes of Canada, 1906, Chap. 146 and amending

Acts.)

SHORT TITLE.

1. This Act may be cited as the Criminal Code. 55-56 V., Short title. c. 29, s. 1.

Origin.]-The Criminal Code in its present form is a revision and consolidation of the Criminal Code of 1892. That statute went into force on July 1, 1893, and was the first codification of the criminal law of Canada. The Code was modelled after the draft Code formulated by the commissioners appointed to revise the criminal law of England which, however, was not adopted by the British Parliament.

Evidence.]-The Code itself contains many enactments as to the law of evidence in criminal matters. The Canada Evidence Act which follows the Code in this volume is also applicable to prosecutions under the Code. And by sec. 35 of the Canada Evidence Act, the respective laws of evidence in the Provinces of Canada are applicable to proceedings under federal laws, subject to the provisions so made and any other enactments of the federal Parliament.

Legislative power.]-Section 91 of the British North America Act, 1867, embodying the Canadian Constitution, provides that it shall be lawful for the Dominion Parliament to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects thereby assigned exclusively to the Legislatures of the provinces; and "for greater certainty, but not so as to restrict the generality of the foregoing terms," it is thereby declared that (notwithstanding anything in that Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within certain classes of subjects enumerated, amongst which is: (27) The Criminal Law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters.

Section 92 of the same statute provides that in each province the Legislature may exclusively make laws in relation to matters coming 1-CRIM. CODE.

within certain other classes of subjects therein enumerated, amongst which is included the following: (14) The administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts.

This latter power has been held to include the power of giving jurisdiction to the provincial courts and to impliedly include the power of enlarging, altering, amending and diminishing the jurisdiction of such courts. R. v. Levinger (1892), 22 O.R. 690. But in R. v. Boucher (1879), Cassels S.C. Dig. 181, Henry, J., of the Supreme Court of Canada, held that to merely add to the existing duties or functions of a police magistrate does not interfere with the constitution, maintenance or organization of the court, even if such office can be called a "court" within the meaning of sec. 92 of the B.N.A. Act, which he doubted. And in R. v. Toland (1892), 22 O.R. 505, it was held that an Ontario statute (sec. 2 of 53 Vict., ch. 18), which authorized police magistrates to try and convict persons charged with forgery was ultra vires of the Provincial Legislature; per MacMahon, J. Enforcing the law against a person charged with the commission of a crime is by the "trial" of the offender and his punishment for the offence. The trial is not connected with the constitution, maintenance or organization of a court but is criminal procedure. Ibid.

The whole domain of crime and criminal procedure is the exclusive property of the Dominion Parliament, and to allow the Parliament of a province to declare that an act which, by the general law, is a crime, triable and punishable as a crime with the ordinary safeguards of the constitution affecting procedure as to crime, shall be something other than or less than a crime, and so triable before and punishable by magistrates as if not a crime, would be destructive of the checks provided by the general law for the constitutional liberty of the subject. R. v. Lawrence (1878), 43 U.C.Q.B. 164, 175, per Harrison, C.J.

But there are many acts not being crimes which are triable before and punishable by magistrates, which, although called offences, are not crimes, and which by the proper legislative authority may be made the subject of summary magisterial jurisdiction, either with or without appeal; but these are not to be mistaken for acts in themselves crimes, and the subject of indictment, and of conviction under indictment, either at the common law or by statute. Such acts as these may by the Provincial Legislature be made the subject of punishment by fine, penalty or imprisonment, when this is done for the purpose of enforcing any law of the province made in relation to any matter coming within any of the classes of subjects exclusively assigned to the Provincial Legislatures. One of the subjects exclusively assigned to the Provincial Legislatures is the right to make laws as to "shop, saloon, tavern, auctioneer and other licenses, in order to the raising of a revenue for provincial, local, or municipal purposes." Ibid.

The passing of a provincial statute, within the powers of the Legislature, cannot in any wise take away from Parliament the right to legislate respecting the same matters, and to prohibit them and to enforce the prohibition by such punishment by way of fine or imprisonment as may be deemed best; or to draw into the domain of criminal law an act which has hitherto been punishable only under a provincial statute. Per Rose, J., in R. v. Stone (1892), 23 O.R. 46, following R. v. Wason, 17 A.R. 221, and R. Hart, 20 O.R. 611.

A provincial statute relating to criminal law passed before Confederation 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. R. v. Halifax Electric Tramway Co. (1898), 1 Can. Cr. Cas. 424 (N.S.).