Provision of Part XV. as to appeals applies. 797. When any of the offences mentioned in paragraphs (a) or (f) of section seven hundred and seventy-three is tried in any of the provinces under this Part an appeal shall lie from a conviction for the offence in the same manner as from summary convictions under Part XV., and all provisions of that Part relating to appeals shall apply to every such appeal: Exception. Provided that in the province of Saskatchewan or Alberta there shall be no appeal if the conviction is made by a judge of a superior court. 58-59 V., c. 40, s. 1. Part XV. or liminary in Forms to be used. May be altered. The wording of revised sec. 797 seems wide enough to include an appeal from a city police magistrate trying a case under sec. 777, notwithstanding that the right to a reserved case where sec. 777 is the basis of jurisdiction, is still retained in sec. 1013. It would therefore appear that for the following offences, theft under $10, obtaining money or property under $10 by false pretences, receiving stolen property under $10, and keeping a bawdyhouse (where charged as an indictable offence) there will be the option of an appeal, upon questions of law only, to the Court of Appeal either by case reserved or by special leave, or of an appeal upon both law and fact as upon an appeal from a summary conviction, if the summary trial is conducted by a police or stipendiary magistrate under the powers of revised sec. 777. 798. Except as specially provided for in the two last preceding sections, neither the provisions of this Act relating to preliminary inquiries before justices, nor of Part XV., shall apply to any proceedings under this Part. 55-56 V., c. 29, s. 808. 799. A conviction or certificate of dismissal under this Part may be in the form 55, 56, or 57 applicable to the case or to the like effect; and whenever the nature of the case requires it, such forms may be altered by omitting the words stating the consent of the person to be tried before the magistrate, and by adding the requisite words, stating the fine imposed, if any, and the imprisonment, if any, to which the person convicted is to be subjected, if the fine is not sooner paid. 55-56 V., c. 29, s. 807. Form of conviction.]—The form of conviction number 32 authorized by sec. 727 of the Code for summary convictions differs from form number 55 for summary trials, the latter containing a recital that the defendant was "charged before me." If the stipendiary magistrate intends to proceed under sec. 773 upon a charge which may be prosecuted either under that section or by summary conviction, then there should be a recital in the conviction stating the defendant to have been "charged" before him. R. v. Carter (1902), 5 Can. Cr. Cas. 401 (N.S.). PART XVII. TRIAL OF JUVENILE OFFENDERS FOR INDICTABLE OFFENCES. Interpretation. 800. (As amended 1907). In this Part, unless the context Definitions. otherwise requires, (a) 'two or more justices,' or 'the justices,' includes, 'Two or (i) in the provinces of Ontario and Manitoba, any judge more (iii) in the provinces of Nova Scotia, New Brunswick, (iv) in the provinces of Saskatchewan and Alberta, a (v) in the Northwest Territories, any stipendiary magis- (vi) in the Yukon Territory, any judge of the Territorial Court, any two justices sitting together, and any functionary or tribunal having the powers of two justices; (b) 'the common gaol or other place of confinement' in- 'Common cludes any reformatory prison provided for the reception gaol.' of juvenile offenders in the province in which the convic Not to cer in B.C. or P.E.I. tion referred to takes place, and to which, by the law of that province, the offender may be sent. 55-56 V., c. 29, s. 809; 6 & 7 E. VII., c. 45, s. 6. Application of Part. 801. The provisions of this Part shall not apply to any tain offences offence committed in the province of British Columbia or Prince Edward Island, punishable by imprisonment for two years and upwards; and in such provinces it shall not be necessary to transmit any recognizance to the clerk of the peace or other proper officer. 55-56 V., c. 29, s. 829. Theft by person not over sixteen. Jurisdiction. 802. Every person charged with having committed, or having attempted to commit any offence which is theft, or punishable as theft, and whose age, at the period of the commission or attempted commission of such offence, does not, in the opinion of the justice before whom he is brought or appears, exceed the age of sixteen years, shall, upon conviction thereof in open court, upon his own confession or upon proof, before any two or more justices, be committed to the common gaol or other place of confinement within the jurisdiction of such justices, there to be imprisoned, with or without hard labour, for any term not exceeding three months, or, in the discretion of such justices, shall forfeit and pay such sum, not exceeding twenty dollars, as such justices adjudge. 55-56 V., c. 29, s. 810. Theft by juveniles.]-This section (unlike sec. 773 in the summary trials Part) makes no reference to the value of the thing stolen. The jurisdiction to try, and to sentence a juvenile for any offence within sec. 802, is given irrespective of the value of the thing stolen. Under this Part of the Code, however, which relates wholly to juvenile offenders, he has the right to elect to be tried by a jury, and, in that event, he could not be tried summarily. The power of determining the age or apparent age of the accused is given exclusively to the justice; and a conviction will not be held bad for the omission to state that the accused is under the age of sixteen years. R. v. Quinn (1900), 36 Can. Law Jour. 644 (N.S.). If the charge be of an offence over which, if the offence charged be true in fact, the magistrate has jurisdiction, the magistrate's jurisdiction cannot be made to depend upon the truth or falsehood of the facts, or upon the evidence being sufficient or insufficient to establish the corpus delicti brought under investigation. Cave v. Mountain, 1 M. & G. 257. And on a habeas corpus to which a proper commitment in execution is returned, the court never enters into the question whether the magistrate has drawn the right conclusion from the evidence, when there was evidence. R. v. Munro (1864), 24 U.C.Q.B. 44. No conviction under Part XVII. shall be quashed for want of form or be removed by certiorari or otherwise into any court of record; and no warrant of commitment under the said Part shall be held void by reason of any defect therein, if it is therein alleged that the person has been convicted and there is a good and valid conviction to sustain the same. Code sec. 1123. Common gaol or other place of confinement.]—This expression is defined as to Part XVII. by sec. 801 (b). 803. The provisions of this Part shall not authorize two No imprisonor more justices to sentence offenders to imprisonment in a reformatory in the province of Ontario. 55-56 V., c. 29, s. 830. Ontario. ment in reformatory in vent summary con 804. Nothing in this Part shall prevent the summary con- Not to previction of any person who may be tried thereunder before one or more justices, for any offence for which he is liable to be so viction. convicted under any other Part of this Act or under any other Act. 55-56 V., c. 29, s. 831. Procedure. of accused. 805. Whenever any person, whose age is alleged not to Procuring exceed sixteen years, is charged with any offence mentioned in appearance section eight hundred and two, on the oath of a credible witness, before any justice, such justice may issue his summons or warrant, to summon or to apprehend the person so charged, to appear before any two justices, at a time and place to be named in such summons or warrant. 55-56 V., c. 29, s. 811. 806. Any justice, if he thinks fit, may remand for further Remand of examination or for trial, or suffer to go at large, upon his find- accused. ing sufficient sureties, any such person charged before him with any offence aforesaid. ances. 2. Every such surety shall be bound by recognizance condi- Sureties tioned for the appearance of such person before the same or bound by some other justice or justices for further examination, or for recogniz trial before two or more justices as aforesaid, or for trial by indictment at the proper court of criminal jurisdiction, as the case may be. 3. Every such recognizance may be enlarged from time to Recognizan time, by any such justice or justices to such further time as ces enlarged. he or they appoint; and every such recognizance not so enlarged shall be discharged without fee or reward, when the person has appeared according to the condition thereof. 55-56 V., c. 29, s. 812. Election. Objection of accused or parent or 807. The justices before whom any person is charged and proceeded against under the provisions of this Part, before such person is asked whether he has any cause to show why he should not be convicted, shall address the person so charged in these words, or words to the like effect: 'We shall have to hear what you wish to say in answer to the charge against you; but if you wish to be tried by a jury, you must object now to our deciding upon it at once.' 2. And if such person, or a parent or guardian of such person, then objects, no further proceedings shall be had under guardian. the provisions of this Part; but the justices may deal with the case according to the provisions set out in Parts XIII. and XIV., as if the accused were before them thereunder. V., c. 29, s. 813. When accused shall 55-56 The Parts of the Code here referred to are those relating to preliminary enquiries before justices for indictable offences, Part XIII., as to compelling the appearance of the accused, comprising Code secs. 646-667 and Part XIV., as to the procedure on the appearance of the accused before a justice, comprising Code secs. 668-704. As to the trial of juveniles without publicity see secs. 644 and 645. 808. If the justices are of opinion, before the person not be tried charged has made his defence, that the charge is, from any summarily. circumstance, a fit subject for prosecution by indictment, or if the person charged, upon being called upon to answer the charge, objects to the case being summarily disposed of under the provisions of this Part, the justices shall not deal with it summarily, but may proceed to hold a preliminary inquiry as provided for in Parts XIII, and XIV. Election to 2. In case the accused has elected to be tried by a jury, the be stated in justices shall state in the warrant of commitment the fact of such election having been made. 55-56 V., c. 29, s. 814. warrant. Summons to witness. Binding over witness. 809. Any justice may, by summons or by writing under his hand, require the attendance of any person as a witness upon the hearing of any case before two justices, under the authority of this Part, at a time and place to be named in such summons. 55-56 V., c. 29, s. 815. 810. Any such justice may require and bind by recognizance every person whom he considers necessary to be examined, touching the matter of such charge, to attend at the time and place appointed by him and then and there to give evidence. upon the hearing of such charge. 55-56 V., c. 29, s. 816. |