mons or recognizance, and if proof is made of such person if summons having been duly summoned as hereinafter mentioned, or bound disobeyed. by recognizance as aforesaid, the magistrate before whom such person should have attended may issue a warrant to compel his appearance as a witness. 55-56 V., c. 29, s. 795. See also secs. 672-678. 789. Every summons issued under the provisions of this Service of Part may be served by delivering a copy of the summons to summons. the person summoned, or by delivering a copy of the summons to some inmate of such person's usual place of abode apparently over sixteen years of age. 2. Every person required by any writing under the hand of Writing the magistrate to attend and give evidence as aforesaid shall sufficient. be deemed to have been duly summoned. 55-56 V., c. 29, s. 796. To raise the question whether proper service has been made and jurisdiction over the person acquired, certiorari is an appropriate remedy. R. v. Smith L.R. (1875), 10 Q.B. 604. Appeal is not an adequate remedy, because the defendant, in order to assert his appeal, gives the court jurisdiction over his person. Re Ruggles (1902), 5 Can. Cr. Cas. 163 (N.S.); Rand v. Rockwell, 2 N.S.D. 199. In R. v. Farmer, [1892] 1 Q.B. 637, a certiorari was granted because service of a summons was made at a house which the defendant had left for a residence in America, the former not being "his last place of abode." Lord Esher, M.R., said: "If there was no service of the summons, the magistrate had no jurisdiction to make an order on it." See sec. 658, which provides for service of a summons on preliminary enquiry by leaving it for the defendant at his “last or most usual place of abode." 790. Whenever the magistrate finds the offence not proved, Dismissal of he shall dismiss the charge, and make out and deliver to the charge. person charged a certificate under his hand stating the fact of such dismissal. 55-56 V., c. 29, s. 797. 791. Every conviction under this Part shall have the same Effect of effect as a conviction upon indictment for the same offence. conviction. 55-56 V., c. 29, s. 798. The Superior Court of the Province of Quebec has no jurisdiction to quash by way of certiorari, decisions rendered by magistrates sitting for the summary trial of indictable offences. The review of such decisions in so far as they are reviewable belongs exclusively to the Court of King's Bench in the Province of Quebec. The King v. Marquis, 8 Can. Cr. Cas. 346. In The Queen v. St. Clair (1900), 3 Can. Cr. Cas. 551, it was objected that the conviction could not be reviewed by means of writs of habeas corpus Certificate of and certiorari. The conviction in that case proceeded under Part XVI. of the Code, upon a charge the jurisdiction of the magistrate to try which is absolute and not dependent upon the consent of the accused. The Ontario Court of Appeal held that such a conviction, although a record or matter of record in the sense in which all summary convictions by justices are so (Paley on Convictions, 5th ed., pp. 157, 158), is of a different character from the judgment of the court of record expressly constituted as such under the speedy trials Part of the Code, and that there was no reason why it should not be enquired into upon habeas corpus and certiorari in the same manner and to the same extent as any other summary conviction. The judgment also points out that while sec. 791 says that a conviction under Part XVI. shall have the same effect as a conviction upon an indictment for the same offence, nevertheless it is not the same thing. R. v. St. Clair, 3 Can. Cr. Cas., at page 553. A warrant of commitment after sentence is not always necessary to sustain the imprisonment, for the sentence itself may be a sufficient justification of the imprisonment. But the warrant is always advisable for the protection of the gaoler, in anticipation of habeas corpus proceedings, by giving him a document in due form, which he can include in his return to the writ as his authority or warrant for the detention. The person in whose custody the convicted person is placed in execution of his sentence cannot be taken to be cognizant of all the proceedings. It is enough that the court had authority to award in custody, namely, the judgment of such for which he detains the party in custody, namely, the judgment of such a court. R. v. Suddis (1801), 1 East R. 306, 316. The conviction should be framed in such terms as will shew upon the face of it that what was charged is properly the subject of summary trial. R. v. Clark (1862), 21 U.C.Q.B. 552. 792. Every person who obtains a certificate of dismissal or dismissal or is convicted under the provisions of this Part, shall be released from all further or other criminal proceedings for the same cause. 55-56 V., c. 29, s. 799. conviction. Result of hearing to be filed in court of sessions. This section, formerly sec. 45 of 32 & 33 Vict., ch. 20, was held not to be ultra vires as interfering with civil rights. Wilson v. Codyre (1886), 26 N.B.R. 516. That was an action of damages for assault and the defendant pleaded that an information had been laid against him by plaintiff before a magistrate in respect to the trespass declared on, and that the magistrate, after hearing, dismissed the information and gave the defendant a certificate of dismissal, whereby, and by force of the statute, he was released from the action. It was held on demurrer that the plea was insufficient in not stating that the complainant had prayed the magistrate to proceed summarily. Ibid. 793. The magistrate adjudicating under the provisions of this Part shall transmit the conviction, or a duplicate of the certificate of dismissal, with the written charge, the depositions of witnesses for the prosecution and for the defence, and the statement of the accused, to the clerk of the peace or other proper officer for the district, city, county or place wherein the offence was committed, there to be kept by the proper officer among the records of the general or quarter sessions of the peace or of any court discharging the functions of a court of general or quarter sessions of the peace. 63-64 V., c. 46, s. 3; 1 E. VII., c. 42, s. 2. A signed minute of adjudication by justices endorsed upon the original information is not evidence in a subsequent prosecution for unlawfully being at large, of the sentence of imprisonment imposed by the justices, a formal conviction or a certified copy thereof being essential for that purpose. An amended conviction correcting errors of form in a defective conviction previously transmitted for record under Code sec. 793 may be filed at any time before the first conviction is attacked, and even pending the trial of a charge of unlawfully remaining at large laid under the defective conviction. R. v. Taylor (1906), 12 Can. Cr. Cas. 245 (Alta.). Process of execution upon a conviction may be issued after the signing of a minute of adjudication and before the drawing up of a formal conviction. Ibid. dismissal. 794. A copy of such conviction, or of such certificate of Evidence of dismissal, certified by the proper officer of the court, or proved conviction or to be a true copy, shall be sufficient evidence to prove a conviction or dismissal for the offence mentioned therein in any legal proceedings. 55-56 V., c. 29, s. 802. 795. The magistrate by whom any person has been con- Restituvicted under the provisions of this Part may order restitution tion of property. of the property stolen, or taken or obtained by false pretenses, in any case in which the court, before whom the person convicted would have been tried but for the provisions of this Part, might by law order restitution. 55-56 V., c. 29, s. 803. See sec. 1050. 796. Whenever any person is charged before any justice or Remand by justices, with any offence mentioned in section seven hundred justice to magistrate. and seventy-three, and in the opinion of such justice or justices the case is proper to be disposed of summarily by a magistrate, as in this Part provided, the justice or justices before whom such person is so charged may, if he or they see fit, remand such person for trial before the nearest magistrate in like manner in all respects as a justice or justices are authorized to commit an accused person for trial at any court: Provided that Proviso. no justice or justices, in any province, shall so remand any person for trial before any magistrate in any other province. 2. Any person so remanded for trial before a magistrate in Jurisdiction. any city, may be examined and dealt with by the said magis trate or any other magistrate in the same city. 55-56 V., c. 29, s. 804. Provision of Part XV. as to appeals applies. Exception. Part XV. or liminary in Forms to be used. May be altered. 797. When any of the offences mentioned in paragraphs (a) or (f) of section seven hundred and seventy-three is tried in any of the provinces under this Part an appeal shall lie from a conviction for the offence in the same manner as from summary convictions under Part XV., and all provisions of that Part relating to appeals shall apply to every such appeal: Provided that in the province of Saskatchewan or Alberta there shall be no appeal if the conviction is made by a judge of a superior court. 58-59 V., c. 40, s. 1. The wording of revised sec. 797 seems wide enough to include an appeal from a city police magistrate trying a case under sec. 777, notwithstanding that the right to a reserved case where sec. 777 is the basis of jurisdiction, is still retained in sec. 1013. It would therefore appear that for the following offences, theft under $10, obtaining money or property under $10 by false pretences, receiving stolen property under $10, and keeping a bawdyhouse (where charged as an indictable offence) there will be the option of an appeal, upon questions of law only, to the Court of Appeal either by case reserved or by special leave, or of an appeal upon both law and fact as upon an appeal from a summary conviction, if the summary trial is conducted by a police or stipendiary magistrate under the powers of revised sec. 777. 798. Except as specially provided for in the two last preceding sections, neither the provisions of this Act relating to preliminary inquiries before justices, nor of Part XV., shall apply to any proceedings under this Part. 55-56 V., c. 29, s. 808. 799. A conviction or certificate of dismissal under this Part may be in the form 55, 56, or 57 applicable to the case or to the like effect; and whenever the nature of the case requires it, such forms may be altered by omitting the words stating the consent of the person to be tried before the magistrate, and by adding the requisite words, stating the fine imposed, if any, and the imprisonment, if any, to which the person convicted is to be subjected, if the fine is not sooner paid. 55-56 V., c. 29, s. 807. Form of conviction.]—The form of conviction number 32 authorized by sec. 727 of the Code for summary convictions differs from form number 55 for summary trials, the latter containing a recital that the defendant was "charged before me." If the stipendiary magistrate intends to proceed under sec. 773 upon a charge which may be prosecuted either under that section or by summary conviction, then there should be a recital in the conviction stating the defendant to have been "charged" before him. R. v. Carter (1902), 5 Can. Cr. Cas. 401 (N.S.). PART XVII. TRIAL OF JUVENILE OFFENDERS FOR INDICTABLE OFFENCES. Interpretation. 800. (As amended 1907). In this Part, unless the context Definitions. otherwise requires, (a) 'two or more justices,' or 'the justices,' includes, "Two or (i) in the provinces of Ontario and Manitoba, any judge more (iii) in the provinces of Nova Scotia, New Brunswick, (iv) in the provinces of Saskatchewan and Alberta, a (v) in the Northwest Territories, any stipendiary magis- (vi) in the Yukon Territory, any judge of the Territorial Court, any two justices sitting together, and any functionary or tribunal having the powers of two justices; (b) 'the common gaol or other place of confinement' in- 'Common cludes any reformatory prison provided for the reception gaol.' of juvenile offenders in the province in which the convic |