2ND EDIT. REVISED STATUTES 1906 REMARKS The statutory conditions upon which jurisdiction depends cannot be waived by the accused. (167) A justice of the peace. not having the powers of two justices, has no jurisdiction to hold a summary trial under this Part. (168) APPLICATION OF PART. Sec. 808. Sec. 772. Part XVII not affected. Nothing in this Part shall affect the provisions of Part XVII, and this Part shall not extend to persons punishable under that Part. so far as regards offences for which such persons may be punished thereunder. (169) JURISDICTION. Sec. 783. Sec. 773. Offences dealt with under this Part. Whenever any person is charged before a magistrate, (a) with theft or obtaining money or prop- (b) with attempt to commit theft; or (d) with indecent assault upon a male per- (167). Ib. (168) R. v. Coté, 8 Can. Cr. Cas., 393. (169) Taken from the latter half of the old section 808. 2ND EDIT. REVISED STATUTES 1906 REMARKS (e) with assaulting or obstructing any public or peace officer engaged in the execution of his duty, or any person acting in aid of such officer; or (f) with keeping or being an inmate or habitual frequenter of any disorderly house, house of ill-fame or bawdy house; or (g) with any offence under section 235; the magistrate may, subject to the subsequent provisions of this Part, hear and determine the charge in a summary way. Altered as here set forth. (170) A magistrate. upon the summary trial before him of a prisoner on a charge, under the above section, paragraph (a), of having committed theft, may convict him of the offence mentioned in paragraph (b), of having attempted to commit theft. (171) It has recently been held, disapproving of R. v. France, (172), and approving of Ex parte John Cook, (173), that the term "disorderly house", used in clause (f) of the above section, is to be governed by the statutory definition of that term, given in section 228, ante, and that it includes, not only a common bawdy house, but also a common gaming house and a common betting house, so that a police magistrate has jurisdiction to summarily try a charge of keeping a common gaming house, without the consent of the accused. (174) A conviction upon a summary trial by two justices, under the above sections 771 and 773, for keeping a disorderly house at a specified address, from the 3rd of May to the 3rd of November, is a bar, under a plea of autrefois convict, at a speedy trial of a charge under section 228 of keeping such a house on the 3rd of November only. (175) Where the name of the accused, the place of the offence and the character of the offence are the same in the certificate of conviction produced in proof of a plea of autrefois convict and in the charge then being tried, it will be presumed that the accused is the party named in such certificate, without parol evidence of identity. (176) The extended jurisdiction by which magistrates, etc., are em (170) The principal alterations are in subsections (c) and (d). (173) Ex p. John Cook, 3 Can. Cr. Cas., 72. (174) R. v. Flynn. 9 Can. Cr. Cas., 550. (175) R. v. Clark, 9 Can. Cr. Cas., 125. (176) Ib. 2ND EDIT. REVISED STATUTES 1906 REMARKS powered to summarily try the offence of being an inmate of a house of ill-fame and other offences, and to impose six months imprisonment and a fine not exceeding $100, is not restricted as to that offence by the fact that if the accused were prosecuted under the "summary convictions" clauses of being a "vagrant," by reason of being such inmate, the fine could not have exceeded $50 in addition to six months imprisonment. (177) 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. (178) Sec. 784. Sec. 774. Absolute jurisdiction of magistrate in respect to houses of ill-fame. The jurisdiction of such Magistrate is absolute in the case of any person charged with keeping or being an inmate or habitual frequenter of any disorderly house, house of illfame or bawdy-house, and does not depend on the consent of the person charged to be tried by such Magistrate, nor shall such person be asked whether he consents to be so tried. 2. The provisions of this part shall not affect the absolute summary jurisdiction given to any justice or justices in any case by any other Part of this Act. (179) Sec. 784. Sec. 775. Absolute jurisdiction in Quebec and Montreal as to seafaring person. The jurisdiction of the Magistrate is absolute in the case of any person who, being a seafaring person and only transiently in Canada and having no permanent domicile therein, ist charged, either within the city of Quebec as limited for the purpose of the police ordinance, or within the city of Montreal as so limited, or in any other seaport city or town in Canada where there is such Magistrate, (177) R. v. Roberts, 4 Can. Cr. Cas., 255. (178) R. v. Sarah Smith, 9 Can. Cr. Cas., 338; Can. Ann. Dig., (1905), 110. (179) The three paragraphs (slightly altered of the old section 784) are made into these three new sections, 774, 775 and 776. 2ND EDIT. REVISED STATUTES 1906 REMARKS with the commission therein of any of the offences in this Part previously mentioned, and also in the case of any other person charged with any such offence on the complaint of any such seafaring person whose testimony is essential to the proof of the offence. 2. Such jurisdiction does not depend on the consent of any such person to be tried by the magistrate nor shall such person be asked whether he consents to be so tried. (179) Sec. 784. Sec. 776. Jurisdiction absolute in certain provinces. The jurisdiction of the magistrate in the provinces of British Columbia. Prince Edward Island, Saskatchewan and Alberta and in the North West Territories and Yukon Territory under this Part, is absolute, without the consent of the party charged, except in cases coming within the provisions of section 777 and except in cases under sections 782 and 783, where the person charged is not a person who, under section 775, can be tried summarily without his consent. (179) Sec. 785. Sec. 777. Summary trial, in Ontario and in cities and If any towns elsewhere, of certain cases. 2. This section shall apply also to police and stipendiary magistrates of cities and 2ND EDIT. REVISED STATUTES 1906 REMARKS incorporated towns in every other part of Canada, and to recorders where they exercise judicial functions: Provided that when the magistrate has jurisdiction by virtue of this section only, no person shall be summarily tried thereunder without his own consent. 3. Sections seven hundred and eighty and seven hundred and eighty-one do not extend or apply to cases tried under this section. Slightly changed, as here set forth. It has been held, in New Brunswick, that a police magistrate holding a commission for a county with a statutory jurisdiction in a city situate in such county is not a police magistrate of a city within the meaning of subsection 2 of this section, and that such county police magistrate has no jurisdiction to hold a "summary trial" under this Part (XVI) of the Code. (180) This section, 777, comprises the summary trials of indictable offences (triable at General Sessions) other than those specifically mentioned in section 773 ante. It has been held in New Brunswick that, although there are no courts of General Sessions except in Ontario, subsection 2 of this section, 777, is not, therefore, inoperative, but gives to a city or town magistrate, in other parts of Canada. the jurisdiction created for Ontario by the first paragraph of the section: it being also held that it is within the legislative powers of a provincial legisIature to enact that every police magistrate shall constitute a court with such jurisdiction as the Dominion Parliament confers or purports to confer or may hereafter confer upon him. (181) A person accused of perjury may, with his own consent, be summarily tried before a police magistrate; and where a defendant sought and consented to be tried summarily under section 785, (now section 777), pleading "not guilty," and the magistrate heard the evidence, adjudicated summarily and dismissed the charge, it was held that the magistrate was right in afterwards refusing to bind the prosecutor over to prosecute an indictment against the defendant under section 688 of the Code, ante; for, (see section 784 post), the magistrate has the right to determine before the defence is made whether he will try the case summarily or not. (182) A police magistrate of a city or town may, in a summary trial (180) R. v. Benner, 8 Can. Cr. Cas., 398; 35 N. B. R., 632. (181) In re Vancini, (No. 1), 24 C. L. T., 265; 40 C. L. J., 466. Aff. (in Appeal, by the Supreme Court of Canada), in Re Vancini, (No. 2), 8 Can. Cr. Cas., 228; 34 Can. S. C. R., 621. (182) R. v. Burns, (No. 2), 4 Can. Cr. Cas., 330; 1 Ont. L. R., 341. |