Imprison ment less than two years, in gaol, etc. Proviso. Where other sentence at same sittings, to penitentiary. Or if term in penitentiary running. In Manitoba, to any common gaol. sentences passed upon the offender for his several offences shall take effect one after another. 55-56 V., c. 29, s. 954. A prisoner convicted at the one time of two offences and sentenced on each to three months' imprisonment without specification as to the terms being concurrent or otherwise, is not entitled to a discharge on a habeas corpus after three months' imprisonment. There is no presumption that sentences passed at the one time are to be concurrent. Ex parte Bishop (1895), 1 Can. Cr. Cas. 118 (N.B.). 1056. Every one who is sentenced to imprisonment for a term less than two years shall, if no other place is expressly mentioned, be sentenced to imprisonment in the common gaol of the district, county or place in which the sentence is pronounced, or if there is no common gaol there, then in that common gaol which is nearest to such locality, or in some lawful prison or place of confinement, other than a penitentiary, in which the sentence of imprisonment may be lawfully executed: Provided that, (a) when any one is sentenced to imprisonment in a peni- (b) when any one is sentenced for any offence who is, at the Sub-section (b) is intended to provide for cases of escapes, attempts to escape, assaults on officers, etc., so that a person may be condemned to imprisonment in the same penitentiary after the expiration of his sentence, for a further term in respect of the escape, etc., although such further term is less than two years, the limit of punishment under sec. 185. In other cases imprisonments for terms of less than two years are made in the common gaols and in prisons other than penitentiaries under this section. The judges of the Supreme Court of New Brunswick have the exclusive right to issue writs of habeas corpus to enquire into the legality of the imprisonment of a person confined in the Dominion penitentiary at Dorchester (within that province) though he was committed there by a Nova Scotia court. Ex parte Stather (1886), 25 N.B.R. 375. But the courts of a province in which is situate a penitentiary common to that and another province, should not enquire on habeas corpus into the validity of an indictment upon which the prisoner was tried in the other province and sentenced to imprisonment in such penitentiary. R. v. Wright (1905), 10 Can. Cr. Cas. 461 (N.B.). Certificate of sentence.]-If the certificate of sentence to imprisonment in a penitentiary is irregular for omission of the date of sentence, leave may be given on a habeas corpus motion to return an amended certificate correcting the omission. R. v. Wright (1905), 10 Can. Cr. Cas. 461. The certified copy of sentence is sufficient warrant for the imprisonment of a convict in the penitentiary and it is not necessary that it should contain every essential averment of a formal conviction. Where the venue is mentioned in the margin of a commitment, in the case of an offence which does not require local description, it is not necessary that the warrant should describe the place where the offence was committed. A warrant of commitment (or certified copy of sentence) following a conviction on indictment, need not state the time from which the term of imprisonment shall begin to run, as both under the Penitentiaries Act and the Prisons Act, terms of imprisonment commence on and from the day of the passing of the sentence. Ex parte Smitheman (1904), 35 Can. S.C.R. 189, 490, 9 Can. Cr. Cas. 10, 17. or without 1057. Imprisonment in a common gaol, or a public prison, Imprisonother than a penitentiary or the Central Prison for the province ment with of Ontario, the Andrew Mercer Ontario Reformatory for hard labour. females or any reformatory prison for females in the province of Quebec, shall be with or without hard labour, in the discretion of the court or person passing sentence, if the offender is convicted on indictment, or under the provisions of Parts XVI. or XVIII., or, in the province of Saskatchewan or Alberta, before a judge of a superior court, or in the Northwest Territories, before a stipendiary magistrate or in the Yukon Territory, before a judge of the Territorial Court. ishment. 2. In other cases such imprisonment may be with hard Hard labour labour, if hard labour is part of the punishment for the offence part of punof which such offender is convicted, and if such imprisonment is to be with hard labour, the sentence shall so direct. 55-56 V., c. 29, s. 955. The Dominion Parliament has the constitutional power to establish prisons for the incarceration of offenders against Dominion laws. Re Goodspeed (1903), 7 Can. Cr. Cas. 240 (N.B.). As the questions of the age of the accused and whether he was, or was not, a Protestant could not, or need not, be enquired into on the trial of the offence, they would properly form a subject of enquiry on the part of the justice after the conviction and before sentence in Nova Scotia to ascertain whether a boy should be committed to the Halifax Industrial School under sec. 90 of the Prisons Act; and it would not, therefore, be necessary to refer to them in the conviction. The Queen v. Brine, 33 N.S.R. 43. Persons convicted may be bound over to keep the peace. Committal in default. Proceedings remains in prison for two weeks. Hard labour upon imprisonment.]-Where the sentence imposed upon a summary trial by consent before a city stipendiary magistrate for common assault was, in the first instance, three months' imprisonment without mention of hard labour and the minute of adjudication did not include hard labour, a formal conviction, including hard labour, and a commitment thereon in similar terms are invalid and the accused will be discharged on habeas corpus. Ex parte Carmichael (1903), 8 Can. Cr. Cas. 19 (N.S.). Provisions as to Sureties. 1058. Every magistrate under Part XVI. and every court of criminal jurisdiction before whom any person is convicted of an offence and is not sentenced to death, shall have power, in addition to any sentence imposed upon such person, to require him forthwith to enter into his own recognizances, or to give security to keep the peace, and be of good behaviour for any term not exceeding two years, and that such person in default shall be imprisoned for not more than one year after the expiry of his imprisonment under his sentence, or until such recogniz ances are sooner entered into or such security sooner given. 2. Any such recognizance may be in form 49. 63-64 V., c. 46, s. 3. Magistrate under Part XVI.] This refers to the summary trial of indictable offences and the term “magistrate” includes the officials designated in sec. 771. A recognizance to keep the peace for two years, being beyond the powers conferred upon justices by Code sec. 748 and only authorized to be taken by a stipendiary magistrate under certain circumstances and when exercising a power of "summary trial," must shew on its face that the magistrate had jurisdiction to require it to be given, or its estreat will be refused. So where a stipendiary magistrate taking a recognizance to keep the peace follows form 49 of the Code without reference therein to any pending prosecution or to any obligation to appear in court, it is to be assumed that he was proceeding in his capacity of a justice of the peace under Code sec. 748, to which alone that form is applicable, and if the term exceeds twelve months the recognizance is void. Re Sarah Smith's Bail (1903), 6 Can. Cr. Cas. 416 (N.S.). 1059. Whenever any person who has been required to enter when party into a recognizance with sureties, to keep the peace and be of good behaviour, or not to engage in any prize-fight has, on account of his default therein, remained imprisoned for two weeks, the sheriff, gaoler or warden shall give notice, in writing, of the facts, to a judge of a superior court, or to a judge of the county court of the county or district in which such gaol or prison is situate, or, in the cities of Montreal and Quebec, to a judge of the sessions of the peace for the district, or, in the Northwest Territories, to a stipendiary magistrate. 2. Such judge or magistrate may order the discharge of such Procedure person, thereupon or at a subsequent time, upon notice to the when brought up. complainant or otherwise, or may make such other order as he sees fit, respecting the number of sureties, the sum in which they are to be bound and the length of time for which such person may be bound. 55-56 V., c. 29, s. 960. Whipping. 1060. Whenever whipping may be awarded for any Sentence of offence, the court may sentence the offender to be once, twice punishment by whipping. or thrice whipped, within the limits of the prison, under the supervision of the medical officer of the prison, or if there be no such officer, or if the medical officer be for any reason unable to be present, then, under the supervision of a surgeon or physician to be named by the Minister of Justice, in the case of prisons under the control of the Dominion, and in the case of other prisons by the attorney general of the province in which such prison is situated. 2. The number of strokes shall be specified in the sentence; Number of and the instrument to be used for whipping shall be a cat-o'- strokes. nine-tails unless some other instrument is specified in the Instrument. sentence. 3. Whenever practicable, every whipping shall take place When not less than ten days before the expiration of any term of whipping to take place. imprisonment to which the offender is sentenced for the offence. 4. Whipping shall not be inflicted on any female. 63-64 V., Not on c. 46, s. 3. Capital Punishment. female. same on con 1061. Every one who is indicted as principal or accessory Punishment for any offence made capital by any statute, shall be liable to be the to the same punishment, whether he is convicted by verdict or viction by on confession, and this as well in the case of accessories as of verdict or by confession. principals. 55-56 V., c. 29, s. 935. sentence of 1062. In all cases where an offender is sentenced to death, Form of the sentence or judgment to be pronounced against him shall death. be that he be hanged by the neck until he is dead. 55-56 V., c. 29, s. 936. 1063. In the case of any prisoner sentenced to the punish- Sentence of ment of death, the judge before whom such prisoner has been death to be State. reported to convicted shall forthwith make a report of the case to the Secretary of Secretary of State, for the information of the Governor General; and the day to be appointed for carrying the sentence into execution shall be such as, in the opinion of the judge, will allow sufficient time for the signification of the Governor's pleasure before such day. Judge may grant reprieve in certain cases. Prisoner under sentence of confined 2. If the judge thinks such prisoner ought to be recommended for the exercise of the royal mercy, or if, from the non-decision of any point of law reserved in the case, or from any other cause, it becomes necessary to delay the execution, he, or any other judge of the same court, or any judge who might have held or sat in such court, may, from time to time, either in term or in vacation, reprieve such offender for such period or periods beyond the time fixed for the execution of the sentence as are necessary for any of the purposes aforesaid. 55-56 V., c. 29, s. 937. The report although made in pursuance of a statutory duty is considered to be of a confidential nature, and is not a public report. In Cashell's Case (1903), 40 C.L.J. 54 (N.W.T.), an order was made by Sifton, C.J., postponing the execution for a week, the prisoner having broken jail and escaped. In an unreported Ontario case (Reg. v. Young (1876)), the prisoners were, on March 27, 1876, found guilty of murder, and were sentenced to be hanged on June 21 following. They effected their escape, and continued at large until midsummer, and were then retaken. Counsel for the Crown, moved before the full court on August 27, for writs of habeas corpus and certiorari to bring up the prisoners from the jail at Cayuga, and the indictment against them, for the purpose of applying for a new sentence of death; which, on return, made to the writs, was passed upon them. 40 C.L.J. 131. 1064. Every one who is sentenced to suffer death shall, after judgment, be confined in some safe place within the death to be prison, apart from all other prisoners; and no person except the gaoler and his servants, the medical officer or surgeon of the prison and a chaplain or a minister of religion, shall have access to any such convict, without permission, in writing, of the court or judge before whom such convict has been tried, or of the sheriff. 55-56 V., c. 29, s. 938. apart. Place of execution. 1065. Judgment of death to be executed on any prisoner shall be carried into effect within the walls of the prison in which the offender is confined at the time of execution. 55-56 V., c. 29, s. 939. |