PART XVI.

SUMMARY TRIAL OF INDICTABLE OFFENCES.

Interpretation.

771. (As amended 1907). In this Part, unless the context Definitions. otherwise requires,

(a) 'magistrate' means and includes,

(i) in the provinces of Ontario, Quebec and Manitoba,
any recorder, judge of a county court if a justice of the
peace, commissioner of police, judge of the sessions of
the peace, and police magistrate, district magistrate, or
other functionary or tribunal, invested by the proper
legislative authority with power to do alone such acts
as are usually required to be done by two or more jus-
tices, and acting within the local limits of his or of its
jurisdiction,

(ii) in the provinces of Nova Scotia and New Brunswick,
any recorder, judge of a county court, stipendiary magis-
trate or police magistrate, acting within the local limits
of his jurisdiction, and any commissioner of police and
any functionary, tribunal or person invested by the
proper legislative authority with power to do alone such
acts as are usually required to be done by two or more
justices of the peace,

(iii) in the provinces of British Columbia and Prince
Edward Island, any two justices sitting together, and
any functionary or tribunal having the powers of two
justices,

(iv) in the provinces of Saskatchewan and Alberta, a
judge of any district court or any two justices, or any
police magistrate or other functionary or tribunal hav-
ing the powers of two justices, and acting within the
local limits of his or its jurisdiction,

(v) in the Northwest Territories, any stipendiary magis-
trate, any two justices sitting together and any func-
tionary or tribunal having the powers of two justices,

'Magistrate.'

"The common gaol or other place

of confinement.'

'Property.'

Valuable

security, how reckoned.

(vi) in the Yukon Territory, any judge of the Territorial
Court, any two justices sitting together and any func-
tionary or tribunal having the powers of two justices,
(vii) in all the provinces, where the defendant is charged
with any of the offences mentioned in paragraphs (a)
and (f) of section seven hundred and seventy-three,
any two justices sitting together;

(b) 'the common gaol or other place of confinement,' in the
case of any offender whose age at the time of his convic-
tion does not, in the opinion of the magistrate, exceed
sixteen years, includes any reformatory prison provided
for the reception of juvenile offenders in the province in
which the conviction referred to takes place, and to which
by the law of that province the offender may be sent;
and,

(c) 'property' includes everything within the meaning of 'valuable security,' as defined by this Act.

2. In any case where the value of any valuable security is necessary to be determined it shall be reckoned in the manner prescribed by section four. 55-56 V., c. 29, s. 782; 58-59 V., c. 40, s. 1; 6 & 7 E. VII., c. 45, s. 6.

Summary Trials Act.]—Unless the context otherwise requires, a reference in any Act to the Summary Trials Act shall be construed as a reference to Part XVI. of the Criminal Code. Interpretation Act, sec. 29.

The powers of the magistrate under the Summary Trials clauses, Part XVI. of the Code, are in several respects less extensive than those of the county judge under the Speedy Trials clauses, Part XVIII. In Part XVI. there are no clauses corresponding with secs. 834, 835 and 839, of which sec. 834 enables the prosecuting officer, with the consent of the judge, to prefer against the prisoner charges for any offence for which he may be tried under the provisions of Part XVIII. other than those for which he has been committed for trial, even though they do not appear on the depositions upon which he was committed. R. v. Walsh, 8 Can. Cr. Cas. 101, 105; 7 O.L.R. 149.

Constitutional law.]-Though the organization of courts of criminal jurisdiction is within the designated powers of the provincial legislatures, the Parliament of Canada may impose upon existing courts or judicial officers the duty of administering the criminal law, and its action to that end need not be supplemented by provincial legislation. Re Vancini (No. 2), 8 Can. Cr. Cas. 228.

The appointment of police magistrates in the several provinces of Canada comes within the jurisdiction of the provincial legislatures. Section 1 of the Ontario Act respecting police magistrates, R.S.O. 1897, ch. 87, declares as to that province that every police magistrate shall be appointed by the Lieutenant-Governor and shall hold office during pleasure; and by sec. 18 of the same Act, where the Lieutenant-Governor-in-Council is of opinion that the due administration of justice requires the temporary appointment of a police magistrate for a county or district, the LieutenantGovernor-in-Council may appoint a police magistrate accordingly. Every police magistrate in Ontario is, ex officio, a justice of the peace for the

whole county or union of counties or district, for which or for part of which he has been appointed. R.S.O. 1897, ch. 87, sec. 27.

A person was convicted before the police magistrate for Ottawa, of unlawfully and feloniously wounding M.K. with intent to do her grievous bodily harm, and was sentenced to be imprisoned for one year at hard labour in the Central Prison. It was contended on behalf of the prisoner that the assignment of the jurisdiction to try the offence to the police magistrate was unauthorized by the constitution, the magistrate being appointed by the provincial government, and under the authority of a provincial statute. This was put as a violation either of sec. 91, sub-sec. 27 of the B.N.A. Act as being legislation by the local legislature respecting criminal law, or the procedure in criminal matters; or of sec. 92, sub-sec. 14, as being an assumption by the Dominion Parliament to constitute a court of criminal jurisdiction in the province. The court held that it had the concurrent Act of both legislatures, the tribunal being constituted by the statute of the province, and the jurisdiction over the offence assigned to it as an existing tribunal by the laws of the Dominion. Re Boucher (1879), 4 Ont. App. R. 191.

In Re County Courts of British Columbia, 21 Can. S.C.R. 446, Chief Justice Strong said:-"The powers of the federal government respecting provincial courts are limited to the appointment and payment of the judges of those courts, and to the regulation of their procedure in criminal matters. The jurisdiction of parliament to legislate as regards the jurisdiction of criminal courts is, I consider, excluded by sub-sec. 14 of sec. 92, before referred to, inasmuch as the constitution, maintenance and organization of provincial courts plainly includes the power to define the jurisdiction of such courts, territorially as well as in other respects. This seems to me too plain to require demonstration. Then, if the jurisdiction of the courts is to be defended by the provincial legislations, that must necessarily also involve the jurisdiction of the judges who constitute such courts."

In Ontario a provincial statute, 53 Vict., ch. 18, was passed, by which it was declared that courts of general sessions should have jurisdiction to try any person, for any offence under certain sections of the Forgery Act, R.S.C. ch. 165. It was held that the provincial legislature had power to so enact and that such a provision was one relating to the constitution of a court rather than to criminal procedure. R. v. Levinger, 22 Ont. R. 690. But a provision in the same statute authorizing police magistrates to trv and to convict persons charged with forgery was declared ultra vires. R. v. Toland, 22 Ont. R. 505.

Police and stipendiary magistrates.]—The appointment of a county police magistrate in Ontario does not necessarily supersede a like previous appointment of another person, but both will have jurisdiction unless the latter appointment is expressed to be in the place and stead of the former. R. v. Spellman (1906), 12 Can. Cr. Cas. 99.

Where a statute declares that the jurisdiction of a county stipendiary magistrate shall extend throughout the "whole of the county," it is to be construed as including jurisdiction in any incorporated town within the county limits notwithstanding the fact that there is a stipendiary magistrate for such town alone, unless the latter's jurisdiction is made exclusive. R. v. Giovanetti (1901), 5 Can. Cr. Cas. 157 (N.S.).

Recorder's courts at Montreal and Quebec.]-By articles 2489 and 2490 R.S.P.Q., "All powers and jurisdiction conferred upon the judges of the sessions of the peace for the cities of Quebec and Montreal, or upon two or more justices of the peace, by the provisions of the said section, are vested in and may be exercised by the recorders and by the recorder's courts of and for the said cities, and by those who by law act in the ab

Part XVII.

sence on account of sickness or otherwise of the said recorders, or when there is no recorder, and discharge the duties of that office."

The effect of this provision is to bring the recorder's court of the City of Montreal under and within the meaning of Code sec. 771, and to give to its decisions the same character as those of a "magistrate.” R. v. Portugais (1901), 5 Can. Cr. Cas. 100 (Que.).

Appeal.]-Except in the cases for which an appeal is specially provided, there is no appeal from the decision of a "magistrate" holding a summary trial under this Part. R. v. Racine, 3 Can. Cr. Cas. 446 (Que.); R. v. Portugais (1901), 5 Can. Cr. Cas. 100, 10 Que. K.B. 567; R. v. Egan (1896), 1 Can. Cr. Cas. 112 (Man.); R. v. Nixon (1900), 5 Can. Cr. Cas. 33 (Ont.); R. v. London Justices (1892), 17 Cox C.C. 526.

Code sec. 797 makes special provision for appeals subject to the limitations therein stated, to be made in like manner as on a summary conviction, from a summary trial and conviction under sec. 773 (a) of theft not exceeding $10, or of obtaining money or property not exceeding $10 by false pretences, or of unlawfully receiving stolen property not exceeding $10 in value.

By the same section an appeal with like limitations is given from a summary trial and conviction for keeping or being an inmate or habitual frequenter of a "disorderly house, house of ill-fame or bawdy-house."

Furthermore sec. 798 specially provides that except as provided by sec. 797 the provisions of Part XV. as to "summary convictions" shall not apply to any proceedings under XVI. as to "summary trials."

There is also by sec. 1013 an appeal from the verdict or judgment of a magistrate proceeding under sec. 777 on the trial of any person for an indictable offence, upon the application of such person if convicted, to the Court of Appeal in the cases provided for in Part XIX. by way of reserved case or special leave on the refusal to reserve a case.

The Superior Court of the Province of Quebec has no jurisdiction to quash by way of certiorari, decisions rendered by magistrates sitting for the summary trial of indictable offences in virtue of Part XVI. of the Code. The review of such decisions in so far as they are reviewable belongs exclusively to the Court of King's Bench in the Province of Quebec. R. v. Marquis (1903), 8 Can. Cr. Cas. 346 (Que.).

Habeas corpus may be taken where the jurisdiction is absolute without consent, as it is in cases under sec. 774 of keeping a house of ill-fame or being an inmate or frequenter. R. v. St. Clair (1900), 3 Can. Cr. Cas.

551.

Application of Part.

772. Nothing in this Part shall affect the provisions of Part not affected. 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. 55-56 V., c. 29, s. 808.

Offences.

Part XVII. referred to in sec. 772 relates to the trial of juvenile offenders for indictable offences. Code secs. 800-821. A juvenile offender under the latter sections is one whose age does not in the opinion of the magistrate exceed 16 years. Code sec. 802.

Jurisdiction.

773. Whenever any person is charged before a magistrate,

ten dollars.

(a) with theft, or obtaining money or property by false pre- Theft not tenses, or unlawfully receiving stolen property, where the exceeding value of the property does not, in the judgment of the magistrate, exceed ten dollars; or,

(b) with attempt to commit theft; or,

Attempt.

assault.

assault.

(c) with unlawfully wounding or inflicting grievous bodily Aggravated harm upon any other person, either with or without a weapon or instrument; or, (d) with indecent assault upon a male person whose age does Indecent not, in the opinion of the magistrate, exceed fourteen years, when such assault is of a nature which cannot, in the opinion of the magistrate, be sufficiently punished by a summary conviction before him under any other Part; or with indecent assault upon a female, not amounting, in the magistrate's opinion, to an assault with intent to commit a rape; or,

(e) with assaulting or obstructing any public or peace officer Assault on engaged in the execution of his duty, or any person acting peace officer. in aid of such officer; or,

(f) with keeping or being an inmate, or habitual frequenter Inmate of of any disorderly house, house of ill-fame or bawdy-house; house of ill

or,

fame.

(g) with any offence under section two hundred and thirty- Offence five;

under s. 235.

the magistrate may, subject to the subsequent provisions of this Summary Part, hear and determine the charge in a summary way. 55-56 hearing. V., c. 29, s. 783.

Procedure.]-Section 773 is one relating to procedure only, and has reference to various offences, the illegality of which is declared by other sections of the Code. Its object is to provide a summary method of disposing of certain classes of offences for which, in the interests of justice, the utmost expedition is required in bringing them to trial, and which were thought not to be of too serious a nature to entrust to the judgment of the selected officials designated by Code sec. 771, when hedged about with the limitations of sec. 778 et seq.

Where the accused found committing an offence under this section is arrested without warrant by a peace officer, and on being brought before a police magistrate a written charge not under oath is read over to him, and he thereupon consents to be tried summarily, the police magistrate has jurisdiction to try the case although no information has been laid under oath. R. v. McLean (1901), 5 Can. Cr. Cas. 67 (N.S.).

Although secs. 773 and 774 appear under the general heading given to Part. XVI., i.e. "Summary trial of indictable offences," the inclusion therein of the offences of being an inmate of a bawdy-house or being an habitual frequenter of same, must be taken as referring to the vagrancy clauses, secs. 238 and 239, and as providing an alternative procedure for the enforcement of those sections as well under the "summary trials" pro

40-CRIM. CODE.