PART XI.

Power to

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

liament, etc.

Authority in Ontario for making.

(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 session next after the making thereof, and shall also be published in the Canada Gazette.

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 aforesaid, 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.

6. Every such recognizance, with affidavit of justification and of due execution, shall be filed with the registrar of the court before the issue of any writ of certiorari.

7. When cause is shewn against an order nisi for a certiorari to remove any judgment, order or conviction upon which no special case has been stated, given, or made by justices of the peace for the purpose of quashing such judgment, order or conviction, the court, or a judge thereof, if it shall think fit, may make it part of the order absolute for the certiorari that the judgment, order, or conviction shall be quashed on return without further order, and in such case, no such recognizance as is required by the last preceding rule, shall be necessary, and a memorandum to that effect shall be indorsed by the proper officer upon the issuing of the writ of certiorari.

8. No objection on account of any omission or mistake in any judgment or order of any justice of the peace or court of summary jurisdiction brought up upon a return of a writ of certiorari and filed in the Supreme Court, shall be allowed, unless such omission or mistake shall have been specified in the order for issuing the certiorari.

Recognizances in British Columbia.]-The British Columbia Crown Rules 43-47 are as follows:

(43.) No recognizance shall henceforth be forfeited or estreated without the order of the court or a judge.

(44.) Every recognizance to appear and answer to any indictment found in the Supreme Court or in the county court judges' criminal court, or to any ex-officio or criminal information shall, unless the court or a judge shall by order dispense therewith, contain besides any other condition which may be imposed a condition that the defendant shall personally appear from day to day on the trial of such indictment or information and not depart until he shall be discharged by the court before whom such trial shall be had.

(45.) Whenever it has been made to appear to the court or a judge, that a party has made default in performing the conditions of the recognizance into which he has entered the court or a judge, upon notice to the defendant and his sureties, if any, to be given in such manner as the court or a judge may direct, may order such recognizance to be estreated without issuing any writ of scire facias.

(46.) In proceedings under sec. 1097 of the Criminal Code, (former sec. 589) for breach of recognizance on remand, the certificate of the justice of the peace of non-appearance of the accused, indorsed on the back of the recognizance, shall be transmitted by the justice of the peace to the registrar of the court where, if committed, the accused would be bound to appear, and be proceeded upon by order of the judge presiding at the assizes, if he thinks proper, in like manner as other recognizances.

In summary convictions under sec. 1097 of the Criminal Code, (former sec. 878) the certificate of default of appearance, as in the preceding rule, shall be transmitted by the justice of the peace to the clerk of the county court having jurisdiction at the place wherein such recognizance is taken, and be proceeded upon by order of the county court judge, if he thinks proper, in like manner as other recognizances.

General.

577. Unless otherwise specially provided in this Act, every Jurisdiction. court of criminal jurisdiction in any province is competent to of courts try any crime or offence within the jurisdiction of such court to generally.

try, wherever committed within the province, if the accused is found or apprehended or is in custody within the jurisdiction of such court or if he has been committed for trial to such court or ordered to be tried before such court, or before any other court, the jurisdiction of which has by lawful authority been transferred to such first mentioned court under any Act for the time being in force. 55-56 V., c. 29, s. 640.

Alternative modes of procedure.]—A prosecution against the keeper of a common bawdy-house may be brought either by indictment or under the summary trials procedure, or the keeper may be charged as a vagrant under the summary convictions procedure, and neither the provision for summary trial nor that for summary conviction abrogates the right of the Crown to bring an indictment. The different methods of procedure with the varying penalties dependent upon the class of tribunal selected are not inconsistent but are alternative. R. v. Sarah Smith (1905), 9 Can. Cr. Cas. 338.

Common law offences.]—It has never been contended that the Criminal Code of Canada contains the whole of the common law of England in force in Canada. Parliament never intended to repeal the common law, except in so far as the Code either expressly or by implication repeals it. Union Colliery Co. v. The Queen (1900), 4 Can. Cr. Cas. 400, 405; 31 Can. S.C.R. 81, per Sedgewick, J. If the facts stated in an indictment constitute an indictable offence at common law, and that offence is not dealt with in the Code, then 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.

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 later law. R. v. Cole (1902), 5 Can. Cr. Cas. 330.

Venue.]-Whenever the accused has been committed by a magistrate or justice of the peace for trial before the court in any district of the same province, the court sitting in such district has jurisdiction to try the case. R. v. Hogle (1896), 5 Can. Cr. Cas. 53 (Que.). And see Code secs. 653 and 665.

The power conferred on a magistrate under sec. 665 of ordering the accused person brought before him, charged with an offence committed out of his territorial jurisdiction (but over which the magistrate still has jurisdiction because of the arrest of the accused within his district), to be taken before some justice having jurisdiction in the place where the offence was committed, is permissive only. Re The Queen v. Burke (1900), 5 Can. Cr. Cas. 29 (Ont.).

But by sec. 888 of the Code, "nothing in this Act authorizes any court in one province of Canada to try any person for any offence committed entirely in another province: Provided that every proprietor, publisher, editor or other person charged with the publication in a newspaper of any defamatory libel, shall be dealt with, indicted, tried and punished in the province in which he resides, or in which such newspaper is printed."

Certain per578. No person who is a master, or the father, son or sons not to brother of a master in the particular manufacture, trade or try case under s. 501. business, in or in connection with which any offence under