or appears by the report of distribution, a warrant of commitment addressed to the sheriff of the district may issue upon the fiat or præcipe of the Attorney General, or of any person thereunto authorized in writing by him, and such warrant shall be authority to the sheriff to take into custody the body of the cognizor so in default and to lodge him in the common gaol of the district until satisfaction is made, or until the court which issued such warrant, upon cause shown as hereinafter mentioned, makes an order in the case and such order has been fully complied with.

2. Such warrant shall be returned by the sheriff on the day on which it is made returnable and the sheriff shall state in his return what has been done in execution thereof.

3. On petition of the cognizor, of which notice shall be giver to the clerk of the Crown of the district, the court may inquire into the circumstances of the case and may in its discretion order the discharge of the amount for which he is liable or make such order with respect thereto and to his imprisonment as may appear just, and such order shall be carried out by the sheriff.

Origin]-Sec. 926, Code of 1892; R.S.C. 1886, ch. 179, secs. 21, 22, 23. If no goods or lands on which to levy]-Where there are several cognizors the goods and lands of all of them must be proceeded against before enforcing the default by personal arrest of any of them. R. v. Ferris (1895), 9 Que. S.C. 376.

Process on recognizance in Quebec.

1118. When a person has been arrested in any district for an offence committed within the limits of the province of Quebec, and a justice has taken recognizances from the witnesses heard before him or another justice, for their appearance at the next session or term of the court of competent criminal jurisdiction, before which such person is to undergo his trial there to testify and give evidence on such trial and such recognizances have been transmitted to the office of the clerk of such court, the said court may proceed on the said recognizances in the same manner as if they had been taken in the district in which such court is held.

Origin]-Sec. 926, Code of 1892; R.S.C. 1886, ch. 179, sees. 21, 22, 23.

Recovery by action on recognizance in Quebec.

1119. Whenever any sum forfeited by the non-performance of the conditions of a recognizance cannot for any reason be recovered in the manner provided in the last four preceding sections, the same shall be recoverable, with costs, by action in any court having jurisdiction in civil cases to the amount, at the suit of the Attorney General of Canada or of Quebec, or other person or officer authorized to sue for the Crown; and in any such action it shall be held that the person suing for the Crown is duly empowered so to do, and that the conditions of the recognizance were not performed, and that the sum therein mentioned is, therefore, due to the Crown, unless the defendant proves the contrary.

2. The cognizor for the recovery of the judgment in any such action shall be liable to coercive imprisonment in the same manner as a surety is in the case of judicial suretyship in civil matters.

Origin]-Sec. 926, Code of 1892; R.S.C. 1886, ch. 179, secs. 21, 22, 23.

PART XXII.

EXTRAORDINARY REMEDIES.

Ordering further detention of person accused on inquiry as to legality of imprisonment.

1120. Whenever any person in custody charged with an indictable offence has taken proceedings before a judge or criminal court having jurisdiction in the premises by way of certiorari, habeas corpus or otherwise, to have the legality of his imprisonment inquired into, such judge or court may, with or without determining the question, make an order for the further detention of the person accused, and direct the judge or justice, under whose warrant he is in custody, or any other judge or justice, to take any proceedings, hear such evidence, or do such further act as in the opinion of the court or judge may best further the ends of justice.

Origin]-Sec. 752, Code of 1892; Code Amendment Act, 1908, ch. 18. "In custody charged with an indictable offence "]-There is a division of opinion in Canadian courts as to whether the sec. 1120 applies after a conviction, and while a prisoner is serving a sentence thereunder, as well as to a commitment which is not one in execution. That it does so apply was affirmed in R. v. Frejd, 22 O.L.R. 566; R. v. Graf, 19 O.L.R. 238, 15 Can. Cr. Cas. 193; R. v. Macdonald, 21 O.L.R. 38, 16 Can. Cr. Cas. 121; ex parte Carroll, 29 Can. Cr. Cas. 213 (Que.); re Le Blanc, 22 Can. Cr. Cas. 208 (N.S.). Compare under a similar provincial law R. v. Ackers, 16 Can. Cr. Cas. 222 (Ont.); R. v. Morgan, 2 O.L.R. 413, affirmed by R. v. Morgan, 3 O.L.R. 356.

Doubt was expressed as to its application to convicted persons in R. v. Goldsberry, 11 Can. Cr. Cas. 159 (Que.); and in the later case of R. v. Morgan, (1913) 25 Can. Cr. Cas. 192, 20 R.L. 277 (Que.), it was held that a person charged" does not mean a person sentenced although the trial was illegal.

may' is to be construed as

"May make an order "]-The word permissive. R.S.C. 1906, ch. 1, sec. 34 (24). If no application be made by the prosecution or by the Crown for the further detention of the prisoner and for time to bring in a new warrant in substitution for

the defective one, there is nothing to prevent the court from ordering his discharge. Re Le Blanc, 22 Can. Cr. Cas. 208, distinguishing R. v. Corbett, 2 Can. Cr. Cas. 499.

If a penalty imposed by the magistrate did not exceed the authorized maximum and the conviction and commitment were regular, the court, on habeas corpus, has no jurisdiction to revise the sentence. O'Neil v. Carbonneau, (1918) 29 Can. Cr. Cas. 340 (Que.).

If a valid cause of detention appears at the time of the return to the writ of habeas corpus, a discharge must be refused although the commitment was illegal at its inception. R. v. Mitchell, (1911) 24 O.L.R. 324, 19 Can. Cr. Cas. 113.

Direction for amended commitment to cure defect appearing on habeas corpus]-In Coté v. Morin, (1917) 53 Que. S.C. 124, 30 Can. Cr. Cas. 59, sec. 1120 was referred to as the basis of the practice of permitting the substitution of a new warrant of commitment for another when the latter is irregular; and was applied to a commitment following a summary conviction; and see R. v. Morgan, 5 Can. Cr. Cas. 63; R. v. Barre, 15 Man. R. 420, 11 Can. Cr. Cas. 1; R. v. Wright, 10 Can. Cr. Cas. 461; re Plunkett, 1 Can. Cr. Cas. 365, 3 B.C.R. 484; R. v. Macdonald, 21 O.L.R. 38, 16 Can. Cr. Cas. 121.

Under some circumstances powers analogous to those conferred by sec. 1120 may exist apart from the statute, and, whether or not the section applies to commitments in execution, it is said that there is an inherent power in a court exercising the powers of the former Court of King's Bench in England to retain the prisoner in custody until a formal defect is remedied. Ex parte Carroll, 29 Can. Cr. Cas. 213 (Que.); R. v. Frejd, 22 O.L.R. 566; R. v. Richards, 5 Q.B. 1126.

An amended commitment in execution of a conviction must conform to the conviction itself, and if the conviction be defective there may be a direction for an amended conviction in cases in which an amendment of the conviction would be permissible on a certiorari. See Code sec. 1121-1125, 1128-1132.

For examples of directions that the magistrate file an amended conviction see also re Le Blanc, (1914) 22 Can. Cr. Cas. 208; R. v. Macdonald, 21 O.L.R. 38; R. v. Smith, 16 Can. Cr. Cas. 425.

The power of amending a conviction under sec. 1124 now extends to convictions on summary trial (Part XVI), as well as to summary convictions (Part XV). Code sec. 797 (2); and see R. v. Crawford, (1912) 2 W.W.R. 952, 20 Can. Cr. Cas. 49 (Alta.). Cases under the prior law-R. v. Randolph, 4 Can. Cr. Cas. 165, 32 Ont. R. 212; R. v. Shing, 17 Can. Cr. Cas. 463-are no longer of authority for refusing to order further detention in respect of a summary trial conviction and commitment, under the like circumstances as upon a summary conviction. Compare R. v. Payne, 30 Can. Cr. Cas. 382 (Que.).

Further detention may be refused and the prisoner's discharge ordered if there has been a gross miscarriage of justice both as to the

illegal term imposed and the class of imprisonment, R. v. Hayward, 5 O.L.R. 65, 6 Can. Cr. Cas. 399.

Apart from sec. 1120 the court has the power to receive an amended commitment at the hearing of the habeas corpus motion; R. v. Richards, 5 Q.B. 926; but under sec. 1120 if an amended commitment is not produced, but the court is of opinion that the defect might be cured by an amended commitment, and that such will "best further the ends of justice," it will give a direction that such be filed, and remand the prisoner to custody to be further detained as if such direction had already been complied with. R. v. Macdonald, 21 O.L.R. 38, 16 Can. Cr. Cas. 121.

Like all other powers of this nature bestowed upon or inherent in the judges of the King's Bench, it is not to be exercised as a matter of course, but only when such action is necessary in the interest of justice. Ex parte Carroll, 29 Can. Cr. Cas. 213 (Que.); R. v. Kolember, 22 Can. Cr. Cas. 341 (Y.T.).

Remands to custody for further proceedings or proceedings de novo]-If the magistrate had jurisdiction to hold a preliminary enquiry, but proceeded without jurisdiction to hold a summary trial, the jurisdiction is properly exercised by an order remanding the accused to be dealt with upon a preliminary enquiry. R. v. Manzi (1915), 8 O.W.N. 533, 24 Can. Cr. Cas. 359; R. v. Frejd, 22 O.L.R. 566. [Contra, R. v. Kolember, 22 Can. Cr. Cas. 341 (Y.T.); R. v. Blucher, 7 Can. Cr. Cas. 278; R. v. Alexander, (1913) 5 W.W.R. 17, 21 Can. Cr. Cas. 473, 25 W.L.R. 290 (Alta.).]

Conversely, if the magistrate, after hearing evidence on both sides in a summary trial (Part XVI), illegally renounced his summary trial jurisdiction and committed for trial, the court on habeas corpus may discharge the accused if it considers that the ends of justice have been served by the imprisonment he has undergone under the committal for trial. R. v. Hicks (1912), 2 W.W.R. 1100, 20 Can. Cr. Cas. 192, 22 W.L.R. 236 (Alta.).

8

If hard labor has been imposed where not authorized, that part of the conviction is severable and the direction of hard labor may be quashed on habeas corpus or certiorari and an amended conviction substituted. Re Muschik, (1916) 9 W.W.R. 1285, 9 Sask. L.R. 1, 25 Can. Cr. Cas. 170; R. v. Atkinson, (1914) 6 W.W.R. 1055, 23 Can. Cr. Cas. 149, 28 W.L.R. 412 (Man.); R. v. McAnn, 4 B.C.R. 587, 3 Can. Cr. Cas. 110. But the substitution of a valid conviction will not validate the hard labor already suffered under the illegal direction. R. v. McAnn, supra.

Habeas corpus Rules]-Code sec. 576.

Order of protection to magistrate and officer]--See sec. 1132.

Bail on habeas corpus]-See R. v. Imanachuk [1918] 3 W.W.R. 207 (Alta.); ex parte Simpson (1918), 30 Can. Cr. Cas. (N.S.); re Hearson, 7 Times L.R. 284; re Watts, 3 O.L.R. 279, 5 Can. Cr. Cas. 538.

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