Place of burial. Certificate to be sent 1071. The body of every offender executed shall be buried within the walls of the prison within which judgment of death is executed on him, unless the Lieutenant Governor in Council orders otherwise. 55-56 V., c. 29, s. 945. 1072. Every certificate and declaration, and a duplicate to Secretary of the inquest required by this Part shall in every case be sent with all convenient speed by the sheriff to the Secretary of State, or to such other officer as is, from time to time, appointed for the purpose by the Governor in Council. of State and exhibited at prison. Copies exhibited in prison. Omission not to make execution illegal. Forms of procedure in other respects. Rules and regulations as to executions. Laid before 2. Printed copies of such several instruments shall as soon as possible, be exhibited and shall, for twenty-four hours at least, be kept exhibited on or near the principal entrance of the prison within which judgment of death has been executed. 55-56 V., c. 29, s. 946. 1073. The omission to comply with any provision of the preceding sections of this Part shall not make the execution of judgment of death illegal in any case in which such execution would otherwise have been legal. 55-56 V., c. 29, s. 947. 1074. Except in so far as is hereby otherwise provided, judgment of death shall be carried into effect in the same manner as if the above provisions had not been passed. 55-56 V., c. 29, s. 948. 1075. The Governor in Council may, from time to time make such rules and regulations to be observed on the execution of judgment of death in every prison, as he, from time to time, deems expedient for the purpose, as well of guarding against any abuse in such execution, as of giving greater solemnity to the same, and of making known without the prison walls the fact that such execution is taking place. 2. All such rules and regulations shall be laid upon the Parliament. tables of both Houses of Parliament within six weeks after the making thereof, or, if Parliament is not then sitting, within fourteen days after the next meeting thereof. 55-56 V., c. 29, S. 949. Any person imprisoned under Pardon. 1076. The Crown may extend the royal mercy to any person sentenced to imprisonment by virtue of any statute, although such person is imprisoned for non-payment of money non-payment to some other person than the Crown. statute although for of money. under par 2. Whenever the Crown is pleased to extend the royal mercy Discharge to any offender convicted of an indictable offence punishable don with with death or otherwise, and grants to such offender either a performance free or conditional pardon, by warrant under the royal sign of conditions manual, countersigned by one of the principal Secretaries of if any has effect of parState, or by warrant under the hand and seal-at-arms of the don under Governor General, the discharge of such offender out of custody, great seal. in case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall, as to the offence of which he has been convicted, have the same effect as a pardon of such offender under the great seal. 3. No free pardon, nor any discharge in consequence thereof, No effect on punishment nor any conditional pardon, nor the performance of the condi- for subsetion thereof, in any of the cases aforesaid, shall prevent or quent mitigate the punishment to which the offender might otherwise offence. be lawfully sentenced on a subsequent conviction for any offence other than that for which the pardon was granted. 55-56 V., c. 29, s. 966. Pardons and commutations.]-The act of pardoning is one of pure clemency, and is not the exercise of a judicial power; it is purely and essentially the exercise of a royal prerogative which is exercised by the Sovereign himself, or in his dominions beyond the seas by his representative under a special delegation of power. This delegation, in the case of the Governor-General, is contained in the royal instruction, but if the King saw fit a delegation of this power could be given to any Lieutenant-Governor for matters under the legislative jurisdiction of his province. (Todd's Parliamentary Government in British Colonies, p. 254.) The prerogative of mercy is simply the exercise of a discretion on the part of the Sovereign to dispense with or to modify punishments which the criminal or penal law required to be inflicted. It is exercised by commutation or by a free or a conditional pardon. Ex p. Armitage, 5 Can. Cr. Cas. 345 (Que.). Letters patent containing permanent instructions for the exercise of the duties and powers of the Governor-General of Canada were issued on the 5th October, 1878. These letters patent specially authorize and empower the Governor-General for the time being, in the name and on behalf of the Sovereign, to grant to any offender convicted of any crime in any court or before any judge, justice or magistrate within the Dominion a pardon should he see occasion, or a respite of the execution of the sentence of any such offender, for such period as he may see fit, and to remit any fines, penalties or forfeitures which may become due and payable to the Crown, provided that the Governor-General should not pardon or reprieve any such offender without first receiving in capital cases the advice of the Privy Council, and in other cases the advice of one at least of his ministers. The royal mercy may be extended to any person who is imprisoned for the non-payment of a penalty which belongs to a person other than the Crown. This rule was established by sec. 125, of the statute 32-33 Vict., ch. 29, and the provision is reproduced in sec. 1076 of the Criminal Code. Ex parte Armitage, 5 Can. Cr. Cas. 345. 54-CRIM. CODE. Commutation of sentence. Instrument and seal of Ontario statute.]-The power of commuting and remitting sentences for offences against the laws of the Province of Ontario, or offences over which the legislative authority of the province extends, which by the terms of the Act 51 Vict., ch. 5 (Ont.), is included in the powers which were vested in or exercisable by the governors or lieutenant-governors of the several provinces before Confederation, and which are now by that Act vested in and exercisable by the Lieutenant-Governor of this province, does not affect offences against criminal laws which are the subject of Dominion legislation, but refers only to offences within the jurisdiction of the Provincial Legislature, and in that sense that Ontario statute is intra vires the Provincial legislature. Attorney-General for Canada v. Attorney-General for Ontario (1892), 19 Ont. App. 31; 23 Can. S.C.R. 458. And see note 5 Can. Cr. Cas. 354. Quebec statute.]-Fines imposed under the Montreal City Charter belong to the Crown as represented by the government of the Province of Quebec, and not to the City of Montreal, and the city has no power to remit the same. Semble, the pardoning power is an exercise of the royal prerogative, and unless a statute expressly limits such prerogative, the same is to be exercised by the Sovereign or by his representative (in Canada by the Governor-General) acting under a special delegation of power from the Sovereign, and the remission of a penalty under a provincial statute for default in payment whereof the accused is undergoing imprisonment is an exercise of the pardoning power. Ex p. Armitage (1902), 5 Can. Cr. Cas. 345 (Que.). Release on suspended sentence.]-See sec. 1081. Remitting penalties.]-See secs. 1084 and 1085. 1077. The Crown may commute the sentence of death passed upon any person convicted of a capital offence to imprisonment in the penitentiary for life, or for any term of years not less than two years, or to imprisonment in any gaol or other place of confinement for any period less than two years, with or without hard labour. 2. An instrument under the hand and seal-at-arms of the under hand Governor General, declaring such commutation of sentence, or Governor, or a letter or other instrument under the hand of the Secretary of letter, etc., State or of the Under Secretary of State, shall be sufficient tary of State authority to any judge or justice, having jurisdiction in such sufficient for case, or to any sheriff or officer to whom such letter or instru from Secre commuta tion. Undergoing sentence ment is addressed, to give effect to such commutation, and to do all such things and to make such orders, and to give such directions, as are requisite for the change of custody of such convict, and for his conduct to and delivery at such gaol or place of confinement or penitentiary, and his detention therein, according to the terms on which his sentence has been commuted. 55-56 V., c. 29, s. 967. 1078. When any offender has been convicted of an offence not punishable with death, and has endured the punishment adjudged, or has been convicted of an offence punishable with equivalent death and the sentence of death has been commuted, and the to a pardon. offender has endured the punishment to which his sentence was commuted, the punishment so endured shall, as to the offence whereof the offender was so convicted, have the like effect and consequences as a pardon under the great seal. for subse 2. Nothing in this section contained, nor the enduring of such No effect on punishment, shall prevent or mitigate any punishment to which punishment the offender might otherwise be lawfully sentenced on a subse- quent quent conviction for any other offence. 55-56 V., c. 29, s. 968. offence. further 1079. When any person convicted of any offence has paid Release the sum adjudged to be paid, together with costs, if any, under from all such conviction, or has received a remission thereof from the proceedings Crown, or has suffered the imprisonment awarded for non- for same payment thereof, or the imprisonment awarded in the first offence. instance, or has been discharged from his conviction by the justice in any case in which such justice may discharge such person, he shall be released from all further or other criminal proceedings for the same cause. 55-56 V., c. 29, s. 969. 1080. Nothing in this Part shall in any manner limit or Royal affect His Majesty's royal prerogative of mercy. 55-56 V., c. prerogative. 29, s. 970. Petition for commutation of sentence.]-In the matter of pardons of convicts in the penitentiaries, prisons, jails and reformatories. the application for clemency should be prepared in the form of a petition addressed to His Excellency the Governor-General, stating the age and name of the convict or prisoner, name of the judge or magistrate who tried and sentenced him, crime committed and date of sentence, term of imprisonment, where incarcerated and reasons for seeking the exercise of the clemency of the Crown. This petition should be forwarded to the Secretary of State at Ottawa, or to the Department of Justice and signed by one or more persons, with any documentary evidence or letters regarding the previous character of the prisoner. The papers are subsequently laid, with the advice of the Minister of Justice, before His Excellency the Governor-General, whose' pleasure is communicated by the Secretary of State to the parties interested and to the warden of the penitentiary or keeper of the jail as the case may be. In capital cases, the judge, after sentencing the prisoner, forwards under sec. 1063 of the Criminal Code, a copy of the evidence and his report to the Secretary of State. Any application for the commutation of the death sentence should be addressed to His Excellency the Governor-General in Council, through the Secretary of State, in the form of a petition setting forth reasons for such application. The application is referred to the Minister of Justice, and is submitted by him, with his recommendation, to the Governor-General in Council, whose pleasure is communicated to the interested parties by the Secretary of State. Ticket of leave.]-See the Ticket of Leave Act, R.S.C. 1906, ch. 150. Suspension of sentence by court when im not more than two years. Suspended Sentence. 1081. In any case in which a person is convicted before any court of any offence punishable with not more than two years' imprisonment, and no previous conviction is proved against prisonment him, if it appears to the court before which he is so convicted, that, regard being had to the age, character, and antecedents of the offender, to the trivial nature of the offence, and to any extenuating circumstances under which the offence was committed, it is expedient that the offender be released on probation of good conduct, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a recognizance, with or without sureties, and during such period as the court directs, to appear and receive judgment when called upon, and in the meantime to keep the peace and be of good behaviour. When more than two years. Special such cases. 2. Where the offence is punishable with more than two years' imprisonment the court shall have the same power as aforesaid with the concurrence of the counsel acting for the Crown in the prosecution of the offender. 3. The court may, if it thinks fit, direct that the offender directions in shall pay the costs of the prosecution, or some portion of the same, within such period and by such instalments as the court directs. 63-64 V., c. 46, s. 3. Suspended sentence.]-Section 1082 (taken from 52 Vict., ch. 44. sec. 4) provides that the court, before directing the release of an offender under sec. 1081, shall be satisfied that the offender or his surety has a fixed place of abode or regular occupation in the county or place for which the court acts, or in which the offender is likely to live during the period named for the observance of the conditions. The subjects to which regard is to be had in considering a release on suspended sentence under sec. 1081 in cases of first conviction are:— (1) the age of the offender; (2) his character; (3) his antecedents; (4) trivial nature of the offence; (5) any extenuating circumstances under which the offence was committed. It seems that while these are joined by the conjunctive "and," the age of the offender and the trivial nature of the offence are to be regarded as alternative extenuating circumstances. 56 J.P. 330. A court trying an offender upon an indictment might, at common law, postpone the judgment or sentence of the court until a future date, such postponement being known as a respite. Keen v. The Queen, 10 Q.B. 928. This was done when a case was stated for the court for crown cases reserved, or where the court, having regard to the nature of the offence, or the antecedents or mental or physical condition of the convict, desired to defer sentence. Archbold's Crim. Pleading (1900), 206. It was common |