2ND EDIT. REVISED STATUTES 1906 REMARKS of a penalty and costs, and after the issuing of a distress warrant and return of nulla bona), to include costs of commitment ;and it was therefore held, in a Sova Scotia case, that the inclusion, in the justice's warrant of commitment, of such authorized costs, was a ground for the discharge of the defendant, upon habeas cor-` pus. (108) But i will be seen, now, that the new section 739 (a) expressly mentions the costs of commitment, as well as the costs and charges of the distress and of the conveying of the defendant to gaol. A summary conviction, in which the costs awarded are directed to be paid to the magistrate, is, in that respect, invalid. (109) Where a fine is imposed by a summary conviction, and, in default of a payment, the accused is ordered to be committed to gaol for three months with hard labor, unless the fine and costs and the charges of conveying the prisoner to gaol are sooner paid, the conviction is invalid to support a commitment thereunder, unless the latter are fixed by the conviction. (110) If the justice making a summary conviction adjudges a pecuniary penalty and a distress to realize same, and in default of sufficient distress that the defendant be imprisoned, the costs of the distress and of conveying the defendant to gaol are not in the discretion of the justice, but must be included in the formal conviction. (111) Hard labor cannot be imposed with imprisonment under the above sections, in default of payment of a fine upon summary conviction, unless imprisonment with hard labor might have been imposed, in the first instance, as part of the punishment for the offence. (112) A warrant of commitment under the above section (7396) in default of paying a fine is bad, unless it includes the expenses of conveying the defendant to gaol. (113) A warrant of commitment for want of distress, upon a summary conviction, is invalid, and will be quashed, if it recites only default in payment of the fine, and does not show, on its face, either a return of the distress warrant and that no sufficient distress was found, or that a distress was dispensed with in accordance with section 744, post. (113a) (108) R. v. Townsend, (No. 3), 11 Can. Cr. Cas., 153. (109) R. v. Law Bow, 7 Can. Cr. Cas., 468. (110) Ib. (111) R. v. Vantassel. (No. 1). 5 Can. Cr. Cas., 128; R. v. Vantassel, (No. 2), 5 Can. Or. Cas., 133; Can. Ann. Dig. (1902), 121. (112) R. v. McIver, 7 Can. Cr. Cas., 183. (113) R. v. Gow, (alias Joe), 11 Can. Cr. Cas., 81. (113a) R. v. Skinner, 9 Can. Cr. Cas., 558; Can. Ann. Dig., (1905), 98. 2ND EDIT. REVISED STATUTES 1906 REMARKS The provision of the Canada Temperance Act fixing the penalty at "not less than $50, or imprisonment for a term not exceeding one month" applies to so limit the term of imprisonment when imposed in the first instance, and not imposed for default of payment of the penalty. Where a fine is, in the first instance, imposed, the punishment, in default of payment of the fine, may be for any term not exceeding three months, under the above section (739) of the Code. (114) Sec. 873. Sec. 742. Distress and commitment for costs. When any information or complaint is dismissed with costs the justice may issue a warrant of distress on the goods and chattels of the prosecutor or complainant, in form 45. for the amount of such costs; and, in default of distress, a warrant of commitment in form 46 may issue. 2. The term of imprisonment in such case shall not exceed one month. Slightly altered, as here set forth. Sec. 874. Sec. 743. Endorsement of warrant of distress. Unchanged. (115) Sec. 875. Sec. 744. The justice may dispense with a distress, if it would be ruinous to his family, or if defendant confesses, or it otherwise appears, that he has no goods and chattels. Unchanged. Sec. 876. Sec. 745. Proceedings pending execution of distress warrant. Unchanged. Unchanged. Sec. 877. Sec. 746. Cumulative punishment. Meaning unchanged. SURETIES TO KEEP THE PEACE. Sec. 959. Sec. 748. Recognizance to keep the peace in addition to or in lieu of sentence and security to keep the peace, on complaint of a person threatened with personal injury, etc. Meaning unchanged. (115a) on account of The application for sureties to keep the peace, threats, should be made soon after the cause of fear, upon which it is based, has arisen, (116) and the threat complained of (114) R. v. William Blank, 10 Can. Cr. Cas., 358. (115) The form of Endorsement of warrant of distress is now form 47. (115a) The forms to be used in proceedings under this section are forms 48, 49 and 50. (116) Dennis v. Lane, 6 Mod., 131. 2ND EDIT. REVISED STATUTES 1906 REMARKS should not be merely a conditional or contingent one, to be executed in case only of the complainant doing something which he has no right to do, or which it is not necessary for him to do in the course of his business. But if it is so necessary, then a threat so made may be a proper foundation for the application for sureties. (117) The Magistrate will form his own opinion and satisfy himself as to whether or not the facts stated amount in reality to a threat of personal violence. It is not enough that the complainant swears to an apprehension of personal violence. He should disclose facts which show that he has reasonable grounds for his fears and that the defendant's conduct is such as would make that impression upon the mind of any impartial and dispassionate man. If the Magistrate is satisfied upon this subject, he issues either a summons or a warrant to bring the defendant before him. And the defendant, upon his appearance, is asked if he has any cause to show why he should not enter into his recognizance and give the required sureties to keep the peace. The third paragraph of the above section, 748, expressly provides that the provisions of this Part (XV), — (relating to summary convictions), shall apply, so far as applicable, to proceedings thereunder, and that the complainant and defendant and witnesses may be called and examined and cross-examined. Where, on an application for sureties to keep the peace, proof is made not only of the alleged threats, but also of the commission of an assault, not alleged, the justice cannot convict the defendant of the assault, but can only order the giving of sureties as applied for. (118) APPEAL. Sec. 879. Sec. 749. Courts of Appeal in the various provinces. Unless it is otherwise provided in any special Act under which a conviction takes place or an order is made by a justice for the payment of money or dismissing an information or complaint, any person who thinks himself aggrieved by any such conviction or order or dismissal, the prosecutor or complainant, as well as the defendant, may appeal, (a) in the province of Ontario, when the conviction adjudges imprisonment only, to the Court of General Sessions of (117) R. v. Mallinson, 20 L. J. M. C., 33. (118) R. v. Deny, 20 L. J., M. C., 189. 2ND EDIT. REVISED STATUTES 1906 REMARKS the Peace; and in all other cases to the (b) in the province of Quebec, to the arose; (d) in the province of British Columbia, to the county court, at the sitting thereof which shall be held nearest to the place where the cause of the information or complaint arose; (e) in the province of Prince Edward Island, to the Supreme Court; (f) in the province of Saskatchewan or the province of Alberta, to the district court at the sittings thereof which shall be held nearest to the place where the cause of information or complaint arose. (As amended by the 6 and 7 Ed. VII, c. 45, sec. 6; but sec. 7 of the Act provides that the Act shall come into force as respects either of the provinces of Saskatchewan and Alberta only upon proclamation of the Governor General). (g) in the Northwest Territories, to a stipendiary magistrate; and, (h) in the Yukon Territory, to a judge of the Territorial Court. 2. In the district of Nipissing such person may appeal to the Court of General Sessions of the Peace for the county of Renfrew, when the conviction adjudges impris-. sonment only, and in all other cases to the Division Court of the county of Renfrew held nearest to the place where the cause of the information or complaint arose. 3. In the case of the provinces of Saskatchewan and Alberta, and of the Northwest Territories and the Yukon Territory, the judge or stipendiary magistrate hearing any 2ND EDIT. REVISED STATUTES 1906 REMARKS such appeal shall sit without a jury at the place where the cause of the information or complaint arose, or at the nearest place thereto where a court is appointed to be held. Altered, as here set forth. A person who has been convicted under the Summary Convictions Part of the Code upon his plea of guilty may, notwithstanding such plea of guilty, enter an appeal under this section. The plea of guilty concludes the accused only as to the fact that he did what is charged in the information; and he may still appeal either by way of review under section 761 post, or under this section 749, upon the ground that the conviction is bad in law or upon an objection to the information or summons, when such objection has been taken before the magistrate and overruled by him. (119) Where an appeal has been taken, under section 749, from a summary conviction, and the County Court has confirmed the conviction, the defendant cannot afterwards obtain, from the convicting magistrate, a stated case to a Superior Court. the decision in appeal of the County Court being res judicata between the parties as to the application for a "stated case." (120) An appeal lies to the Court of King's Bench, in Quebec, from an order of a justice of the peace, dismissing an information or complaint on a plea of autre fois acquit. (121) Sec. 880. Sec. 750. Procedure in Appeal. Unless it is otherwise provided in the special Act, (a) if a conviction or order is made more than fourteen days before the sittings of the court to which an appeal is given, such appeal shall be made to the next sittings of such court; but if the conviction or order is made within fourteen days of the sittings of such court, then to the second sittings next after such conviction or order; (b) the appellant shall give notice of his intention to appeal by filing in the of fice of the clerk of the court appealed to, and serving the respondent with a copy thereof, a notice in writing setting forth with reasonable certainty the conviction (119) R. v. Brook, 7 Can. Cr. Cas., 216; 5 Terr. L. R., 369. (120) R. v. Townsend, 6 Can. Cr. Cas., 519; 35 N. S. R., 401. (121) R. v. Bombardier, 11 Can. Cr. Cas., 216; Can. Ann. Dig., (1906), |