Compensation to bona fide of stolen property. 1049. When any prisoner has been convicted, either summarily or otherwise, of any theft or other offence, including the purchasers stealing or unlawfully obtaining any property, and it appears to the court, by the evidence, that the prisoner sold such property or part of it to any person who had no knowledge that it was stolen or unlawfully obtained, and that money has been taken from the prisoner on his apprehension, the court may, on application of such purchaser and on restitution of the property to its owner, order, that out of the money so taken from the prisoner, if it is his, a sum not exceeding the amount of the proceeds of the sale be delivered to such purchaser. 55-56 V., c. 29, s. 837. Restitution of stolen property. Writs of restitution. Restitution although no corviction. Restitution in case of valuable security when rights of third parties intervene. This section is similar to sec. 9 of the Imperial Act, 30-31 Vict., eh. 35. See note to sec. 1050. 1050. If any person who is guilty of any indictable offence in stealing, or knowingly receiving, any property, is indicted for such offence, by or on behalf of the owner of the property, or his executor or administrator, and convicted thereof, or is tried before a judge or justice for such offence, under any of the foregoing provisions and convicted thereof, the property shall be restored to the owner or his representative. 2. In every such case the court or tribunal before which such person is tried for any such offence, shall have power to award, from time to time, writs of restitution for the said property or to order the restitution thereof in a summary manner. 3. The court or tribunal may also, if it sees fit, award resti tution of the property taken from the prosecutor, or any witness for the prosecution, by such offence, although the person indicted is not convicted thereof, if the jury declares, as it may do, or if, in case the offender is tried without a jury, it is proved to the satisfaction of the court or tribunal by whom he is tried, that such property belongs to such prosecutor or witness, and that he was unlawfully deprived of it by such offence. 4. If it appears before any award or order is made, that any not ordered valuable security has been bona fide paid or discharged by any person liable to the payment thereof, or being a negotiable instrument, has been bona fide taken or received by transfer or delivery, by any person, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had, by any indictable offence, been stolen, or if it appears that the property stolen has been transferred to an innocent purchaser for value who has acquired a lawful title thereto, the court or tribunal shall not award or order the restitution of such security or property. 5. Nothing in this section contained shall apply to the case Saving. of any prosecution of any trustee, banker, merchant, attorney, factor, broker or other agent entrusted with the possession of goods or documents of title to goods, for any indictable offence under sections three hundred and fifty-eight or three hundred and ninety of this Act. 55-56 V., c. 29, s. 838; 56 V., c. 32, s. 1. This section corresponds with sec. 100 of the English Larceny Act, 2425 Vict., ch. 96. Upon conviction of the thief the owner may recover in trover without applying for a writ of restitution under this section. Regina v. London, L.R. 4 Q.B. 371; Scattergood v. Sylvester, 15 Q.B. 506, 19 L.J.Q.B. 447. Property.]—The expression property includes not only such property as was originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange whether immediately or otherwise; and all deeds and instruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods. Section 2(32). And it has been held in England that the proceeds of the property are included. R. v. Justices of Central Criminal Court, 18 Q.B.D. 314, 16 Cox C.C. 196. That case was followed in the Yukon territory in Howe v. Schroeder (1905), 1 West. L.R. 174. Awarding restitution of stolen property.]-To entitle the aggrieved party to an order for the restitution to him of money found on the prisoner convicted of stealing money from the person, proof must be adduced identifying the money so found as the money which was stolen. R. v. Haverstock (1901), 5 Can. Cr. Cas. 113, per Wallace, Co. J., at Halifax. Where the accused was convicted of the theft of bank notes but there was no evidence to identify the same with the bank notes found on and taken from the prisoner at the time of arrest, and no application was made immediately after the conviction for an order of compensation to the prosecutor for his loss, an order may be properly made ex parte for the restoration to the prisoner of the money so taken from him. Ibid. Where it is impossible to identify the money found on the prisoner as the stolen money, and the prisoner claims the money as his own, the proper course for the prosecutor to take is to apply, under sec. 1048, immediately after the conviction of the prisoner, for compensation for loss of property, and thus obtain an order that the money of the prisoner shall be paid to him to such extent as will compensate him for the loss sustained. The summary power of the court under this section exists only where the prisoner is convicted; and it does not extend in cases of conviction to property other than that in respect of which the charge was brought. R. v. Corporation of London (1858), E.B. & E. 509; R. v. Pierce (1858), Bell C.C. 235. Current coin stolen and passed as currency to innocent persons is not subject to restitution. Moss v. Hancock, [1899] 2 Q.B. 111. But a coin which was sold by the thief as an article of vertu and which had not been passed into circulation as current coin may be ordered to be returned to the owner in like manner as other stolen property. Ibid. Offences It will be noted that sec. 1050 does not include the offence of obtaining money or goods by false pretences, but recourse may be had in such cases to an order for compensation under secs. 1048 and 1049 or to a civil action. Theft defined.]-See secs. 344, 347 and 348. Receiving stolen property.]—See secs. 399-403. Restoration to accused of goods not connected with the charge.]—A superior court of criminal jurisdiction may order the restoration, to an accused person committed for trial, of articles taken possession of by the police, which are not connected with the offence charged, and are not required for the purpose of evidence. Ex parte MacMichael, 7 Can. Cr. Cas. 549; Reg. v. McIntyre, 2 P.E.I. Rep. 154. Where money taken from a prisoner on his arrest is admitted by the Crown authorities not to be required for the purpose of evidence at the trial the court may order it to be restored to the prisoner. R. v. Harris, 1 B.C.R., pt. 1, p. 255. Protection of innocent purchaser.]-Where the property stolen has been transferred by the thief or the guilty receiver to an innocent purchaser for value who has acquired a lawful title thereto, the criminal court shall not award restitution. This is not to be construed as a declaration that the innocent purchaser for value has a lawful title. The protection of sub-sec. 3 is afforded to the innocent purchaser only in the event of his acquisition of a lawful title which fact could be ascertained only by refer ence to the civil law of the province. In Vezina v. Brosseau (1906), 30 Que. S.C. 493, the person from whom a horse was stolen took civil proceedings to recover the horse from the man to whom the purchaser from the thief had sold it. The last sale was pleaded as giving a lawful title under the Que. Civil Code, sec. 1489, on the ground that the sale to the defendant was made by a "dealer trading in similar articles," but the plea was not sustained as it appeared that although the second vendor may have occasionally sold horses, such was not his real or ostensible business. Imprisonment. 1051. Every one who is convicted of any offence not punishnot capital able with death, shall be punished in the manner, if any, prescribed by the statute especially relating to such offence. 55-56 V., c. 29, s. 950. how pun ished. Ticket of leave.]-In the exercise of a discretionary power given to the Crown, a convict may be allowed under the Ticket of Leave Act, R.S.C. 1906, ch. 150, to live outside of the walls of the penitentiary. But his liberation is only partial, subject to all the conditions contained in his license. Some of these conditions are to the effect that he cannot leave Canada; he may even be restricted to certain parts of Canada. He may be called upon at any time to produce his license. To the last day of his sentence he is still a convict, completing the term of his condemnation out of jail under a ticket of leave, which only holds good during good behaviour and during the good pleasure of the Crown. If this license is revoked on account of bad behaviour, and after conviction for the same, he is recommitted to the penitentiary, and the penalty is that "he shall further undergo a term of imprisonment equal to the portion of the term to which he was sentenced that remained unexpired at the time his license was granted." R.S.C. ch. 150, sec. 8; R. v. Johnson, 4 Can. Cr. Cas. 178. 1052. Every person convicted of any indictable offence for When no which no punishment is specially provided, shall be liable to provision. imprisonment for five years. Indictable offence. 2. Every one who is summarily convicted of any offence for Summary which no punishment is specially provided, shall be liable to a conviction. penalty not exceeding fifty dollars, or to imprisonment, with or without hard labour, for a term not exceeding six months, or to both. 55-56 V., c. 29, s. 951; 56 V., c. 32, s. 1. If a statute merely directs imprisonment as the punishment of an offence, no court of justice can, in the absence of any general discretionary power to that effect, award hard labour in addition. It is an additional substantive punishment. Hard labour is in fact a statutable addition to imprisonment, generally to be found enacted in the Act creating the offence, some times in statutes giving it as a discretionary power to a court in awarding imprisonment. R. v. Frawley (1881), 46 U.C.Q.B. 153; R. v. Allbright, 9 P.R. (Ont.) 25. offence. 1053. Every one who is convicted of an indictable offence Punishment not punishable with death, committed after a previous convic- for second tion for an indictable offence, is liable to imprisonment for ten years, unless some other punishment is directed by any statute for the particular offence. 2. In such latter case the offender shall be liable to the pun- Fixed by ishment directed, and not to any other. 55-56 V., c. 29, s. 952. Every one who, after a previous conviction for any indictable offence. is convicted of an indictable offence specified in Part VII. for which the punishment on a first conviction is less than fourteen years' imprisonment is liable to fourteen years' imprisonment. Code sec. 465. statute. term 1054. Every one who is liable to imprisonment for life, or Maximum for any term of years, or other term, may be sentenced to shortened. imprisonment for any shorter term: Provided that no one shall be sentenced to any shorter term of imprisonment than the minimum term, if any, prescribed for the offence of which he is Minimum convicted. 55-56 V., c. 29, s. 953. Where a statute of Canada imposes a fine and also imprisonment the punishment is in the discretion of the court, which is not bound to inflict both, but may inflict either one or the other of the two kinds of punishment by virtue of sec. 1028. R. v. Robidoux (1898), 2 Can. Cr. Cas. 19 (Que.). term. ments. 1055. When an offender is convicted of more offences than Cumulative one, before the same court or person at the same sitting, or when punishany offender, under sentence or undergoing punishment for one offence, is convicted of any other offence, the court or person passing sentence may, on the last conviction, direct that the Imprison ment less than two years, in gaol, etc. Proviso. Where other sentence at same sittings, to penitentiary. Or if term in penitentiary running. In Manitoba, to any common gaol. sentences passed upon the offender for his several offences shall take effect one after another. 55-56 V., c. 29, s. 954. A prisoner convicted at the one time of two offences and sentenced on each to three months' imprisonment without specification as to the terms being concurrent or otherwise, is not entitled to a discharge on a habeas corpus after three months' imprisonment. There is no presumption that sentences passed at the one time are to be concurrent. Ex parte Bishop (1895), 1 Can. Cr. Cas. 118 (N.B.). 1056. Every one who is sentenced to imprisonment for a term less than two years shall, if no other place is expressly mentioned, be sentenced to imprisonment in the common gaol of the district, county or place in which the sentence is pronounced, or if there is no common gaol there, then in that common gaol which is nearest to such locality, or in some lawful prison or place of confinement, other than a penitentiary, in which the sentence of imprisonment may be lawfully executed: Provided that, (a) when any one is sentenced to imprisonment in a peni- (b) when any one is sentenced for any offence who is, at the Sub-section (b) is intended to provide for cases of escapes, attempts to escape, assaults on officers, etc., so that a person may be condemned to imprisonment in the same penitentiary after the expiration of his sentence, for a further term in respect of the escape, etc., although such further term is less than two years, the limit of punishment under sec. 185. In other cases imprisonments for terms of less than two years are made in the common gaols and in prisons other than penitentiaries under this section. The judges of the Supreme Court of New Brunswick have the exclusive right to issue writs of habeas corpus to enquire into the legality of the |