within the description of persons referred to. Per Armour, J., “I think the practice of granting leave to file criminal informations in this country, having regard to the social conditions of its inhabitants and the liberties which they enjoy, is, to say the least of it, of very doubtful expediency, and should, in my opinion, be discontinued and, if necessary, abolished by legislative enactment. The very rule adopted in England,' that it will only be granted to what I may call a superior person' is the strongest reason, to my mind, why in this country it should never be granted at all. Whatever may be deemed desirable in England, I do not think it desirable that in this country there should exist a remedy for the superior person which is denied to the inferior." R. v. Wilson (1878), 43 U.C.Q.B. 583. Per Cameron, J.: "There is no real necessity, so far as I am aware, for any one seeking this remedy. Any person libelled has a right to lay an information before a magistrate charging any one who may have libelled him with the offence, and may then by his oath deny the truth of the slanderous charges or imputations." Ibid. Hagarty, C.J., added that it was not to be understood that the court laid down any absolute rule as to future applications for criminal informations, or that they meant to fetter their discretion in dealing therewith. R. v. Wilson (1878), 43 U.C.Q.B. 583.

Where the libel charges the person libelled with having, by a previous writing, provoked it, the latter by his affidavit on which he moves for a criminal information is bound to answer such charge, otherwise the affidavit will be held insufficient. R. v. Whelan (1862), 1 P.E.I. Rep. 220, per Peters, J.

Delay in not applying to the court promptly will, if not satisfactorily accounted for, be ground for refusing the application. R. v. Kelly (1877), 28 U.C.C.P. 35.

In answer to an application for a criminal information for libel the defendants filed an affidavit stating that they had no personal knowledge of the matter contained in the alleged libels, but received the information from persons whom they trusted to be reliable and trustworthy; that the Globe newspaper was controlled by the applicant, who was an active politician, and had published a number of articles violently attacking one S., who was a candidate for a public office, and the libels in question were published with a view of counteracting the effect of; these articles, and believing them to be true, and without malice. This was held to be no ground for the court refusing to the applicant leave to file a criminal information for the reiterated publication in a newspaper of matter not pretended either to be not libellous, or to be true in fact. R. v. Thompson (1874), 24 U.C.C.P. 252.

Where there is foundation for a libel, though it falls far short of justification, an information will not be granted. R. v. Biggs, 2 Man.

R. 18.

Leave to file a criminal information for libel can only be granted by the full court in Nova Scotia, i.e., the provincial Supreme Court, sitting en banc; a single judge, although presiding over a court for the disposal of criminal business in a county, has no jurisdiction to grant the leave. R. v. Burgess, 23 Can, Cr. Cas. 424, 48 N.S.R. 241, and see R. v. Beale, 1 Can. Cr. Cas. 235, 11 Man. R. 448, and R. v. Labouchere, 12 Q.B.D. 320, 15 Cox C.C. 415.

Proceedings for contempt of court in libel concerning pending litigation]-Great care is to be exercised in applying the summary jurisdiction of the court in proceedings for contempt. Re Whiteside, R. v. MeInroy (1915), 9 W.W.R. 846, 32 W.L.R. 764, 25 Can. Cr. Cas. 49; Guest v. Knowles, 17 O.L.R. 416; re North Renfrew Election, 9 O.L.R. 79; re Lewis, 34 O.L.R. 518, 24 Can. Cr. Cas. 364; re Finance Union, 11 Times L.R. 165; R. v. Charlier, 6 Can. Cr. Cas. 486 (Que.).

In cases of prosecutions for crimes against the king's subjects, the person charged has many rights and safeguards provided by the law, such as the right, in many cases, to a trial by jury, the right, in certain eircumstances, to have the place of trial changed, the right to be tried where the act charged or the arrest took place, R. v. O'Gorman, 15 Can. Cr. Cas. 175, 18 O.L.R. 427, and, generally speaking, the right to what is understood by "full defence," and it is the court which sees that these rights are accorded. But when the process of summary punishment for contempt, is considered, the position is different. Here the power to award punishment is inherent in the court, not in the judge and jury, but in the court itself, and, being so inherent, it has to be adequate to meet the conditions which call for its exercise, Fournier v. AttorneyGeneral, 19 Que. K.B. 431, 17 Can. Cr. Cas. 108, 113.

The person charged not only does not have the right to put forward the testimony of witnesses on his behalf, but is even exposed to have to answer interrogatories. Neither has he the right to a trial by jury. The absolute and far-reaching nature of this power has often been commented upon: Ex parte Fernandez, 10 C.B.N.S. 6; The King v. Davies [1906] 1 K.B, 32. This inherent power to summarily punish for contempt does not exist for the protection or vindication of the judge who may have been the object of the affront, but it exists to prevent interference with the due course of justice, and to prevent suitors from having their confidence in the court shaken or destroyed. Folkard, 7th ed., p. 389. Stoddart v. Prentice, 6 B.C.R. 308; Fournier v. Attorney-General, 19 Que, K.B. 431.

For a newspaper to insinuate that the Crown prosecutor at a préliminary enquiry before a justice is engaged in persecution and in seeking notoriety, and is taking action in order to earn money, is something which tends to interfere with a fair trial of the criminal charge and is punishable as a contempt of court on motion to the Supreme Court of the province. Re Whiteside, R. v. McInroy (1916), 9 W.W.R. 846

(Alta.). In that case a fine of $25 was imposed along with an order for payment of the costs of the application.

The power has been exercised in respect of a scurrilous attack upon the presiding judge, published during the assize. R. v. Gray [1900] 2 Q.B. 36; but mere abuse of a judge does not amount to a contempt of court. In re Bahamas Islands Reference, [1893] A.C. 138.

The power to punish for contempt is a discretionary power; MeDermott v. The Judges of British Guiana, 38 L.J.P.C. 1; Ramsay v. The Queen, 11 L.C.J., 164; Fournier v. Attorney-General (Que.), 17 Can. Cr. Cas. 108, 19 Que. K.B. 431; Wallace's case, L.R. 1 P.C. 283; re O'Brien (R. v. Howland), 16 S.C.R. 216.

A private litigant may apply to the Superior Court for the issue of contempt process to repress some act which, besides being an offence to the court, is an invasion of some private right. In such a case, the proceeding would be civil. Godfrey v. George [1896] 1 Q.B. 48; Fournier v. Attorney-General (Que.), 17 Can. Cr. Cas. 108, 19 Que. K.B. 431. In the Fournier case, the action of the Superior Court was asked for by the Attorney-General, on the ground that an attack had been made on the court. In such circumstances, the case is to be regarded as being a criminal matter, notwithstanding that the court resorted to is a court of civil jurisdiction. Fournier v. Attorney-General (Que.), 17 Can. Cr. Cas. 108, 19 Que. K.B. 431.

Owen [1894] 1 Q.B. 102.

O'Shea v. O'Shea, 15 P.D. 59; Lewis v.

In a criminal matter regard is to be had to the provisions of the criminal law, in determining whether a right of appeal exists or not, and whether, if it exists, it has been regularly exercised or not. Fournier v. Attorney-General, supra; Ellis v. The Queen, 22 S.C.R. 7; O'Shea v. O'Shea, L.R. 15 P.D. 59.

The charge should be proved with particularity where criminal proceedings are taken for contempt. Re Scaife, 5 B.C.R. 153; and see re Houston, R. v. Wilkinson, 41 U.C.Q.B. 42.

A corporation guilty of contempt in publishing comments calculated to prejudice the fair trial may be punished by fine, although the form of the application is for an attachment against the company and its directors. R. v. Hammond [1914] 2 K.B. 866.

A writ of attachment for contempt is to be moved for by counsel and not by an applicant appearing in person; ex parte Liebrand (1914), W.N. 310, applying ex parte Fenn (1833), 2 D.P.C. 527; unless provision has been made to the contrary by rule of court or otherwise. The Crown rules in the particular province will regulate the procedure in applying for a writ of attachment. R. v. Cook, 22 Can. Cr. Cas. 211, 14 E.L.R. 123, 15 D.L.R. 501; N.S. Crown Rules, order 25, rule 163; Austin v. Bertram, 23 N.S.R. 379. As to a variation of the formal order from the written decision, see Grant v. Grant, 36 N.S.R. 547.

OFFENCES AGAINST RIGHTS OF PROPERTY AND RIGHTS ARISING OUT OF CONTRACTS, AND OFFENCES CONNECTED WITH TRADE.

Definitions.

Interpretation.

335. In this Part, unless the context otherwise requires.(a) act, for the purposes of the sections relating to offences connected with trade and breaches of contract, includes a default, breach or omission;

Origin]-Code of 1892, secs. 383, 392, 407, 419, 420, 421, 433, 443, 444, 519; 4 and 5 Edw. VII, ch. 9, sec. 1; 7 and 8 Edw. VII, ch. 18.

see. 5.

6

(b) Admiralty means the Lord High Admiral of the United Kingdom, or the Commissioners for execut ing the office of Lord High Admiral;

(c) 'break' means to break any part, internal or external, of a building, or to open by any means whatever (including lifting, in the case of things kept in their places by their own weight), any door, window, shutter, cellar-flap or other thing intended to cover openings to a building, or to give passage from one part of it to another;

'Breaking and entering "1-As to burglary and shopbreaking, see Code secs. 460 and 461 (amendment of 1913), housebreaking, secs. 457, 458, 459, 462-464. Entrance obtained by threat, artifice or collusion may be a breaking. Sec. 340, sub-sec. 2.

Further lifting a partly open window has been held not to be a “breaking" within sec. 335 (c). R. v. Burns, 7 Can. Cr. Cas. 95, 36 N.S.R. 257. As to entrance by an aperture permanently and necessarily left open in a building, see sec. 340.

(d) covering includes any stopper, cask, bottle, vessel, box, cover, capsule, case, frame or wrapper; and 'label' includes any band or ticket;

(e) 'dwelling-house' means a permanent building, the whole or any part of which is kept by the owner or occupier for the residence therein of himself, his family or servants, or any of them, although it may at intervals be unoccupied;

(f) 'document' means any paper, parchment or other material used for writing or printing, marked with matter capable of being read, but does not include trade marks on articles of commerce, or inscriptions on stone or metal or other like material;

(g) 'every one,' ' vendor,'' purchaser,' 'merchant,' agent or 'person,' for the purposes of the sections relating to trading stamps, includes any partnership, or company, or body corporate;

(h) exchequer bill' includes exchequer bonds, notes, debentures and other securities issued under the authority of the Parliament of Canada, or under the authority of the legislature of any province forming part of Canada, whether before or after such province so became a part of Canada;

(i) 'exchequer bill paper' means any paper provided by the proper authority for the purpose of being used as exchequer bills, exchequer bonds, notes, debentures or other securities issued under the authority of the Parliament of Canada, or under the authority of the legislature of any province forming part of Canada, whether before or after such province became a part of Canada;

(j) false document' means

(i) a document, the whole or some material part of which purports to be made by or on behalf of any person who did not make or authorize the making thereof, or which, though made by, or by the authority of, the person who purports to make it, is falsely dated as to time or place of making, where either is material, or

(ii) a document, the whole or some material part of which purports to be made by or on behalf of some person who did not in fact exist, or