When

offence punishable

under more than one

Act or law.

not entitled as of right to bail and it is discretionary with the Superior Court exercising habeas corpus jurisdiction to allow or refuse bail in such cases. With respect to indictable offences which were misdemeanours before the Criminal Code, 1892, the accused committed for trial is entitled to bail as a matter of right on habeas corpus. Ex parte Fortier, 6 Can. Cr. Cas. 191.

A provincial statute prior to Confederation, providing for the discharge from imprisonment in default of indictment of an accused person committed for a "felony" will apply equally to cases which were misdemeanours before the abolition by the Criminal Code of Canada of the distinction between felony and misdemeanour. R. v. Cameron (1897), 1 Can. Cr. Cas. 169 (Que.).

Enactments regulating the procedure in courts are usually deemed imperative, and not merely directory. Maxwell on Statutes, 456; Taylor v. Taylor, 1 Ch.D. 426; 3 Ch.D. 145; R. v. Riel (No. 2) (1885), 1 Terr. L.R. 23, 44.

15. Where an act or omission constitutes an offence, punishable on summary conviction or on indictment, under two or more Acts, or both under an Act and at common law, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of such Acts, or at common law, but shall not be liable to be punished twice for the same offence. 55-56 V., c. 29, s. 933.

What statutory offences indictable.]—When a statute makes that unlawful which was lawful before, and appoints a specific remedy, that remedy may be pursued and no other; and where an offence is not so at common law, but made an offence by Act of Parliament, an indictment will lie where there is a substantive prohibitory clause in such Act of Parliament, though there be afterwards a particular provision and a particular remedy. When a new offence is created by an Act of Parliament, and a penalty is annexed to it by a separate and substantive clause, it is not necessary for the prosecutor to sue for the penalty, but he may proceed on the prior clause, on the ground of its being an indictable offence. R. v. Mason (1867), 17 U.C.C.P. 534.

But by the same unlawful acts a person may be guilty of two separate offences, for both of which he may be convicted. R. v. Smith, 19 O.R. 714; R. v. Handley, 5 C. & P. 565.

But where the defendant may be prosecuted on the same facts under two statutes or laws, for substantially the same offence, a conviction under one law is a bar to a charge under the other: the offender may be tried under either statute, but cannot be tried twice. Wemyss v. Hopkins, L.R. 10 Q.B. 378.

In order to be a bar the issue in the second proceeding must be identical with that in the first one, although the facts may vary, and although the charges formulated may not be the same. R. v. King (1897), 1 Q.B. 214; see notes in 2 Can. Cr. Cas. 497.

Offences at common law.]-Parliament never intended to repeal the common law, except in so far as the Code either expressly or by implication repeals it. So that if the facts stated in the indictment constitute an indictable offence at common law, and that offence is not dealt with in the Code, then unquestionably an indictment will lie at common law; even if the offence has been dealt with in the Code, but merely by way of statement

of what is law, then both are in force. Union Colliery Co. v. The Queen, 4 Can. Cr. Cas. 400 (Can.), per Sedgewick, J. So that, for example, a statute which provides a new punishment for an old offence, repeals by implication only so much of the prior law as concerns the punishment, leaving it permissible to indict an offender either under the old law, whether statutory or common, and inflict upon him, upon conviction, the punishment ordained by the new, or under the new statute at the election of the prosecuting power. The offence and punishment, therefore, may be defined by different laws; and so, if a statute simply creates an offence, the common law punishment may by implication be imposed." Bishop on Statutory Crimes, 2nd ed., p. 166.

The common law jurisdiction as to crime is still operative, notwithstanding the Code, and even in cases provided for by the Code, unless there is such repugnancy as to give prevalence to the latter law. R. v. Cole, (1902), 5 Can. Cr. Cas. 330; The King v. Carlile, 3 B. & Ald. 161.

Procedure for offences at common law.]-Section 16 provides that all rules and principles of the common law which render any circumstances a justification or excuse for any act, or a defence to any charge, shall remain in force and be applicable to any defence to a charge under the Code except in so far as they are thereby altered or are inconsistent therewith.

Besides a provision to the same effect the English draft Criminal Code, upon which the Canadian Code was modelled, contained a clause abrogating the common law as regards any possible offences not included in the draft Code, and that seems to have been one of the principal grounds upon which the draft Code was rejected by the British Parliament. No such clause was incorporated in the Canadian Criminal Code and offences at common law may still be prosecuted for in Canada, where the Code neither makes provision to the contrary nor deals with the like offence. But as to matters of mere procedure it is submitted that such provisions of the Code control, in so far as they can be made applicable, the procedure in respect of such common law offences as well as in respect of offences under the Code. Sections 668 to 686, inclusive, headed "Procedure on appearance of accused," purport to deal with preliminary enquiries by justices in any case in which "any person accused of an indictable offence is before a justice whether voluntarily or upon summons, or after being apprehended with or without warrant, or while in custody for the same or any other offence,” sec. 668. And although sec. 654 as to informations and the process to compel appearance before a justice is, by its terms, limited to indictable offences against the Code, its provisions may be taken as ancillary only to the more general power contained in sec. 653 to compel the attendance of the person accused of having committed "an indictable offence" within certain territorial limits.

In a recent case the Supreme Court of Nova Scotia held that the Criminal Code of 1892 was intended to make complete and exhaustive provision as to the subjects with which it deals, in so far at all events as its provisions relate to procedure. It is explicitly called a Code by the first section of the chapter in which it is embodied and its utility as a Code will be greatly impaired if it cannot be so considered. R. v. Snelgrove (1906), 12 Can. Cr. Cas. 189. See also the Vagliano Case, [1891] 1 A.C., at p. 144.

Res judicata.]-Where a person has been acquitted by a court of competent jurisdiction the acquittal is a bar to all further proceedings to punish him for the same matter, although a plea of autrefois acquit may not be allowed because of the different nature of the charges. The acquittal on the first charge became res judicata as between the Crown and the accused, and it was not open to the Crown to proceed on the second charge in which a conviction could only be had by the second jury overruling the contrary verdict of the first jury. R. v. Quinn, 10 Can. Cr. Cas. 412, 11 O.L.R. 242.

Common law

rule in force.

Justification or Excuse.

16. All rules and principles of the common law which render any circumstances a justification or excuse for any act, or a defence to any charge, shall remain in force and be applicable to any defence to a charge under this Act except in so far as they are hereby altered or are inconsistent herewith. 55-56 V., c. 29, s. 7.

Locality of crime.]-All crime is local, and the jurisdiction over the crime belongs to the country where it is committed. Jefferys v. Boosey (1855), 4 H.L.C. 815, 24 L.J. Ex. 81, per Parke, B.; MacLeod v. New South Wales (1891), A.C., 455, 17 Cox C.C. 341. But if a material part of any crime is committed within the jurisdiction legislation may properly provide for the punishment there of the whole of it: Bishop on Cr. Law, sec.

116.

And offences committed by a subject or citizen within the territorial limits of a foreign state may, by legislation, be made punishable in the courts of the country to which the party owes allegiance, and whose laws he is bound to obey. Wheaton's International Law, sec. 113, re Bigamy Sections, 1 Can. Cr. Cas. 172 (S.C. Can.).

In cases of obtaining goods under false pretences, the crime is complete where the goods are obtained; and, therefore, if the pretences are made within one jurisdiction and the property is obtained in another, the person making the representations must be indicted within the latter jurisdiction. 7 Am. & Eng. Ency. of Law 758; People v. Sully, 5 Parker Cr. Cas. (N.Y.) 142; Skiff v. People, 2 Parker Cr. Cas. N.Y. 139.

On an indictment for obtaining money by false pretences by sending a false return of fees to certain public commissioners, it was shewn that the return was received in Westminster with a letter dated Northampton, together with an affidavit sworn there, and that the commissioners thereupon issued an order upon the treasury to pay certain moneys to the prisoner. It was held by Coleridge, J., that the jury might infer that the documents were posted in Northamptonshire, where the affidavit was sworn, and from which county the letter purported to have been written, and that the prisoner was properly indicted in Northamptonshire for obtaining money by false pretences, the "forwarding" of the false return, etc., being alleged as the false pretence. R. v. Cooke (1858), 1 Foster & F. 64. The last-mentioned case was followed and approved by the Court for Crown Cases Reserved in R. v. Holmes (1883), 15 Cox C.C. 343. It was there held that where a false pretence was made by the prisoner in England by letter there posted to a person in France, and received in France by the latter, in consequence of which the latter sent to the prisoner a cheque drawn in France, but payable in England, which the prisoner cashed in England, an offence was established to have taken place in England, and that the prisoner was properly indicted and convicted there.

Common law jurisdiction.]—The common law is not abrogated by the Code and will still be applicable in cases for which no provision has been made in the Code as well to their prosecution as defence. Even in cases provided for by the Code the common law jurisdiction as to crime is still operative except where there is a repugnancy in which event the Code will prevail. R. v. Cole (1902), 5 Can. Cr. Cas. 330.

Newly settled country.]-Generally speaking, if an uninhabited country be discovered and occupied by English subjects, all English laws then in

being, which are the birthright of every subject, are immediately there in force. But this must be understood with many and great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony. Broom & Hadley's Com. 119. At the time of its occupation by English subjects the North-West Territories and the Provinces of Alberta and Saskatchewan would fall within the description of an uninhabited country. R. v. Connor (1885), 2 Man. L.R. 235, 1 Terr. L.R. 4, 13, per Taylor, J.

under seven.

17. No person shall be convicted of an offence by reason of Children any act or omission of such person when under the age of seven years. 55-56 V., c. 29, s. 9.

Common law.]-This is in accordance with the common law under which a child under the age of seven years is doli incapax and no evidence was admissible to rebut that presumption. Marsh v. Loader, 14 C.B.N.S. 535.

and thirteen.

18. No person shall be convicted of an offence by reason of Children bean act or omission of such person when of the age of seven, but tween seven under the age of fourteen years, unless he was competent to know the nature and consequences of his conduct, and to appreciate that it was wrong. 55-56 V., c. 29, s. 10.

Children over 14.]-Children after attaining the age of fourteen years are presumed by the law to be doli capaces, and capable of discerning good from evil, and are with respect to their criminal actions subject to the same rule of construction as others of more mature age. 1 Hale 25.

Children between 7 and 14.]-Where the offender is between the ages of seven and fourteen, evidence of a mischievous discretion on his part may be given to rebut the presumption of law arising from his tender years, but such evidence must be clear and strong beyond all doubt and contradiction. R. v. Vamplew, 3 F. & F. 520. Two questions are in that case to be left to the jury: (1) Whether he committed the offence; (2) whether at the time he had a guilty knowledge that he was doing wrong. R. v. Owen, 4 C. & P. 236; R. v. Smith, 1 Cox 260; Foster Crown Law 70; Russell on Crimes, 6th ed., p. 115.

It is to be conclusively presumed that a party is physically incompetent to commit an unnatural offence under Cr. Code, sec. 202, if under the age of fourteen, such presumption is not affected by the provisions of this section which refers exclusively to mental capacity to distinguish between right and wrong. R. v. Hartlen (1898), 2 Can. Cr. Cas. 12 (N.S.). But although a minor under fourteen cannot be convicted of sodomy, he may, if the act be committed against the will of the other party, be punished for an indecent assault upon another male person under Cr. Code, sec. 293. Ibid.

By Cr. Code, sec. 298, it is enacted that no one under the age of fourteen can commit the offence of rape.

The leading case of R. v. Brimilow (1840), 9 C. & P. 366, 2 Moody C.C. 122, was decided under the statute 1 Vict. (Imp.), ch. 85, sec. 11, which enacted, "that on the trial of any person for any felony where the crime charged shall include assault, the jury may acquit of the felony and find the party guilty of an assault, if the evidence shall warrant such finding." Brimilow was charged with rape, and on it being proved that he was under fourteen years of age, it was left to the jury to say whether he was guilty of an assault, and on conviction, and a case reserved, it was held that he

Insanity.

Delusions.

could, on an indictment for rape, be legally convicted of an assault under that statute.

A boy under fourteen cannot in point of law be guilty of an assault with intent to commit a rape. R. v. Phillips (1839), 8 C. & P. 736, nor of carnally knowing and abusing a girl, although proved that he had arrived at puberty. R. v. Jordan (1839), 9 C. & P. 118, nor of the offence of carnal knowledge of a girl under thirteen. R. v. Waite, [1892] 2 Q.B. 600.

Trial of juvenile offenders.]-See secs. 800 et seq.

19. No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility, or disease of the mind, to such an extent as to render him incapable of appreciating the nature and quality of the act or omission, and of knowing that such an act or omission was wrong.

2. A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, under the provisions hereinafter contained, unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission. Presumption 3. Every one shall be presumed to be sane at the time of of sanity. doing or omitting to do any act until the contrary is proved. 55-56 V., c. 29, s. 11.

This section of the Code follows the draft Code prepared by the Imperial commissioners, which was never adopted by the British Parliament although largely declaratory of the common law.

Remand for medical examination.]—A remand for eight days for the purpose of a medical examination of the accused as to sanity cannot be made on the mere suggestion of the police officer without bringing the accused personally before the magistrate. Re Sarault (1905), 9 Can. Cr. Cas.

448.

Reserved case.]-A case may be reserved at the instance of the Crown upon a question of law as to whether there was any evidence of insanity to support the jury's verdict of not guilty upon that ground. The King v. Phinney (No. 1) (1903), 6 Can. Cr. Cas. 469.

Indictment notwithstanding insanity.]—A grand jury should not on the ground of the insanity of the accused return "no bill" to an indictment. R. v. Hodges, 8 C. & P. 195. As to procedure on the trial of an indictment where this defence is raised see Code secs. 966-970.

The rule laid down by the judges in reply to a question put to them by the House of Lords, in McNaghten's Case (1843), St. Tr. N.S. 847, 10 Clark & F. 200, 1 Car. & K. 130, was as follows: "Notwithstanding the party accused did the act complained of, with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we mean, the law of the land." And this rule was followed and applied in R. v. Riel (No. 2) (1885), 1 Terr. L.R. 23. Leave to appeal was refused by the Privy Council, 10 A.C. 675, 16 Cox C.C. 48.