Cas. 66, 8 W.W.R. 166, 25 Man. L.R. 218; R. v. Hatch, 16 Can. Cr. Cas. 196.

In R. v. Webb, 11 Cox C.C. 133, Lush, J., in 1867, held that a person under sentence of death was attainted and civilly dead, and refused to allow him to be called as witness.

In the civil action of Graeme v. Globe Printing Co., 10 C.L.T. 367, it was held, following Reg. v. Webb, that a person under sentence of death was not a competent witness. In 1865, Byles, J., admitted the evidence of a person under sentence of death. R. v. Mogni, London Times, March 3, 1865, and R. v. Fitzgerald (1884), unreported, referred to in Taylor on Evidence, sec. 1347. Formerly a person under sentence of death was not a competent witness. The conviction and sentence caused him to be attaint, and the attainder destroyed his competency. It was not the sentence of death that destroyed the competency.

In 1867, When Lush, J., ruled as above in The Queen v. Webb, it was doubtful whether the disability imposed by the attainder resulting from the sentence of death, had been removed by statutes 6 and 7 Vict., ch. 85, sec. 1. But in 1870, there was passed in England the Forfeiture Aet, 33 and 34 Vict., ch. 23, the first section of which says:

No confession, verdict, inquest, or judgment of or for any treason or felony or felo de se shall cause any attainder." This removed all difficulty in the way of calling, as a witness, a person under sentence of death, or under any other sentence, as it prevented the following, from the conviction, of those consequences which destroyed the competency.

Substituting "indictable offence" for "felony," sec. 1033 of our Code uses exactly the same language as the English statute of 1870 above quoted. R. v. Kuzin, (1915) 8 W.W.R. 166, 25 Man. L.R. 218, 24 Can. Cr. Cas. 66.

Disabilities.

Conviction of public official vacates office.

1034. If any person hereafter convicted of treason or any indictable offence for which he is sentenced to death, or imprisonment for a term exceeding five years, holds at the time of such conviction any office under the Crown or other public employment, or is entitled to any pension or superannuation allowance payable by the public, or out of any public fund, such office or employment shall forthwith become vacant, and such pension or superannuation allowance or emolument shall forthwith determine and cease to be payable, unless such person receives a free pardon from His Majesty, within two months after such conviction, or before the filling up of such office or employment, if given at a later period.

2. Every such person sentenced to imprisonment as aforesaid or on whom sentence of death has been passed which has been commuted to imprisonment, shall become, and, until he undergoes the imprisonment aforesaid or suffers such other punishment as by competent authority is substituted for the same, or receives a free pardon from His Majesty, shall continue incapable of holding any office under the Crown, or other public employment, or of being elected, or sitting, or voting, as a member of either House of Parliament, or of exercising any right of suffrage or other parliamentary or municipal franchise.

3. The setting aside of a conviction by competent authority shall remove the disability by this section imposed.

Origin]-Sec. 961, Code of 1892; 33-34 Vict., Imp., ch. 23, sec. 2.

Fines and Forfeitures.

Fines in lieu of other punishment.-Fines in addition to other punishment.—Fines upon corporations.

1035. Any person convicted by any magistrate under Part XVI or by any court of an indictable offence punishable with imprisonment for five years or less may be fined in addition to, or in lieu of any punishment otherwise authorized, in which case the sentence may direct that in default of payment of his fine the person so convicted shall be imprisoned until such fine is paid, or for a period not exceeding five years, to commence at the end of the term of imprisonment awarded by the sentence, or forthwith as the case may require.

2. Any person convicted of an indictable offence punishable with imprisonment for more than five years may be fined, in addition to, but not in lieu of, any punishment otherwise ordered, and in such case, also, the sentence may in like manner direct imprisonment in default of payment of any fine imposed.

3. Any corporation, convicted of an indictable or other offence punishable with imprisonment, may in lieu of the prescribed punishment be fined in the discretion of the court before which it is convicted.

Origin]-Sec. 958, Code of 1892; 8-9 Edw. VII, Can., ch. 9.
Application]-Sec. 1035 is limited in its application to the summary

trial of indictable offences under Part XVI, and to the trial of indictable offences in the ordinary way. R. v. Frizell (1914) 22 Can. Cr. Cas. 214, 5 O.W.N. 801, 25 O.W.R. 697.

As to the offence of common assault, sub-sec. 1 of sec. 1035 is subject to the limitations of Code sec. 291, so that a fine for that offence must not exceed $100 upon indictment, whether or not it is intended to be in lieu of a sentence of imprisonment. R. v. Johnson, (1913) 24 W.L.R. 468 (Alta.).

Perjury being an offence punishable with imprisonment for more than five years (sec. 174), there is no jurisdiction to impose, as the punishment therefor, a fine in lieu of imprisonment, but both imprisonment and fine may be awarded under sub-sec. 2 of sec. 1035. R. v. Legros, 14 Can. Cr. Cas. 161, 17 O.L.R. 425.

A fine imposed on a summary trial for theft was upheld in R. v. Sinclair, 10 O.W.N. 119.

Corporations]-Before the amendment of 1909, adding sub-sec. 3, the power of imposing a fine in lieu of imprisonment was limited to cases where the maximum term of imprisonment is five years. The amendment is intended to extend this, in the case of corporations, to offences which, if committed by an individual, would be punishable with imprisonment, no matter what the maximum is.

Finding sureties for good behaviour]-See sec. 1058.

Ordering costs on summary trial or speedy trial]-See sec. 1044.
Suspended sentence]-See secs. 1081-1083.

Fines, penalties and forfeitures go to provincial treasurer. Excep tion, revenue laws, etc.-Where costs of prosecution borne by Canada.

1036. Whenever no other provision is made by any law of Canada for the application of any fine, penalty or forfeiture imposed for the violation of any law or of the proceeds of an estreated recognizance, the same shall be paid over by the magistrate or officer receiving the same to the treasurer of the province in which the same is imposed or recovered, except that,

(a) all fines, penalties and forfeitures imposed in respect of the breach of any of the revenue laws of Canada, or imposed upon any officer or employee of the Government of Canada in respect of any breach of duty or malfeasance in his office or employment, and the proceeds of all recognizances estreated in connection. with proceedings for the prosecution of persons charged with such breaches or malfeasance; and,

(b) all fines, penalties and forfeitures imposed for whatever cause in any proceeding instituted at the instance of the Government of Canada or of any department thereof in which that Government bears the cost of prosecution, and the proceeds of all recog nizances estreated in connection with such proceedings, shall belong to His Majesty for the public uses of Canada, and shall be paid by the magistrate or officer receiving the same to the Minister of Finance and form part of the Consolidated Revenue Fund of Canada.

2. Nothing in this section contained shall affect any right of a private person suing as well for His Majesty as for himself, to the moiety of any fine, penalty or forfeiture recovered in his suit.

3. The Lieutenant Governor in Council may from time to time direct that any fine, penalty or forfeiture, or any portion thereof paid over to the treasurer of the province under this section be paid to the municipal or local authority if any, which wholly or in part bears the expenses of administering the law under which the same was imposed or recovered, or to be applied in any other manner deemed best adapted to attain the objects of such law and secure its due administration.

Origin]-Sec. 927, Code of 1892; 8-9 Edw. VII, Can., ch. 9.

Where application of fine is controlled by statute]-If the applica tion of a penalty imposed in a conviction is fixed by statute, the conviction itself need not specify how it is to be applied. Nelson v. The King (1914) 6 W.W.R. 706 (Sask.).

Collection of fines in Ontario when payable to Provincial Treasurer]-By an Ontario Order-in-Council approved on the 30th day of September. 1915, the following directions were given:

(1.) That it shall be the duty of the Crown Attorney of each county to supervise the collection of fines, penalties, and forfeited recognizances to which the Province is entitled and that he be authorized to receive on behalf of the Treasurer of Ontario, from sheriffs, justices of the peace and others, all moneys to which the Province is entitled for fines, penalties and forfeited recognizances.

(2.) That it shall be the duty of each Crown Attorney to pay over to the Treasurer of Ontario on or before the last day of January, April, July and October, in each year all sums of money collected by him, with the proper particulars showing how the sum remitted is made up. (3.) That each County Attorney be further required to report half

yearly, on or before the 15th day of May and November of each year, particulars of all moneys received by him during the half-year ending on the last day of the preceding month, or in case no money has been received during such half-year, then to report such fact to the Treasurer of Ontario, a duplicate report to be sent in each case to the Inspector of Legal Offices.

(4.) That each Crown Attorney shall be entitled to an allowance of four per cent. on the moneys so collected, such percentage to be deducted by him on the transmission of the moneys to the Treasurer of Ontario. Unless where legal proceedings are instituted under the direction of the Attorney-General, the said allowances are to cover all charges by the Crown Attorney against the Province for services under this Order. (5.) That each sheriff shall be required to give to the Crown Attorney of his county, from time to time, without charge, full information of all process in his hands in respect to any fine, penalty or estreated recognizance to which the Province is entitled.

(6.) That the Orders-in-Council as to collection of fines, penalties and forfeited recognizances dated 9th October, 1885, and 12th November, 1912, be rescinded.

Direction to pay fine, penalty or forfeiture to municipality.

1037. The Governor in Council may, from time to time, direct that any fine, penalty or forfeiture, or any portion thereof, which would otherwise belong to the Crown for the public uses of Canada, be paid to any provincial, municipal or local authority, which wholly or in part bears the expenses of administering the law under which such fine, penalty or forfeiture is imposed, or that the same be applied in any other manner deemed best adapted to attain the objects of such law and to secure its due administration.

Origin]-Sec. 928, Code of 1892; R.S.C. 1886, ch. 180, sec. 3.

May direct that any fine, penalty, or forfeiture be paid," etc.]In the Criminal Code the words "forfeit" and "forfeiture" are used in different senses. They are used sometimes in connection with goods or things and sometimes in connection with fines, penalties, or compensation. In Code forms 32, 39, 41 and 59 the words "forfeit and pay" are used with regard to fines, penalties or compensation. And in construing the words 'fine, penalty or forfeiture" as used in sec. 1037, the word "paid" shows that the words are used in a restricted sense, as meaning only pecuniary fines or forfeitures. Christian v. Christian, (1916) 26 Can. Cr. Cas. 260 (N.S.); and see R. v. Johnston (No. 1) 11 Can. Cr. Cas. 6.

The same shall be applied"]-The use of the words "the same shall be applied" in the latter part of the section does not extend the