Conviction, etc., not set aside for want of proof of order in council. Judicial notice. Conviction not to be set aside with to return the conviction, order or proceeding to the court or justice from which or whom they were removed, and for proceedings to be taken thereon for the enforcement thereof, as if a procedendo had issued, which shall forthwith be done. 55-56 V., c. 29, s. 895. Proceedings in lieu of procedendo.]—Where the superior court cannot enforce the execution of the judgment or cannot administer the same justice to the parties as the court below, or where it appears that there was no good cause for removing it, the former practice was to order a writ of procedendo to issue to send the case back to the inferior court. R. v. Zickrick (1897), 11 Man. R. 452; R. v. Rushworth, 9 Jur. 161. This section dispenses with the necessity of that writ when the conviction is affirmed but not otherwise. R. v. Zickrick (1897), 5 Can. Cr. Cas. 380, 11 Man. R. 452. It is limited also to convictions, orders or proceedings in criminal matters under Dominion jurisdiction (sec. 706), and, applies to offences under provincial laws only in so far as provincial legislation has directed. Where a conviction was quashed on the ground that service of the summons had not been legally effected or waived, the information cannot be returned to the justice under this section to enable him to issue another summons even where it is too late for the prosecutor to lay a second information. R. v. Zickrick (1897), 11 Man. R. 452, 5 Can. Cr. Cas. 380. After the quashing of a writ of certiorari and the return of the conviction to the magistrate, a second writ of certiorari will not be granted. R. v. Nichols (1889), 21 N.S.R. 288. It would seem that where the return to the writ of certiorari in aid of a habeas corpus has not been actually filed in the superior court, a procedendo is not necessary on the remand of the accused to custody and quære whether Code sec. 1127 would not apply to dispense with a procedendo in such a case. R. v. Harrison (1907), 15 O.L.R. 231. 1128. No order, conviction or other proceeding made by any justice or stipendiary magistrate shall be quashed or set aside, and no defendant shall be discharged, by reason of any objection that evidence has not been given of a proclamation or order of the Governor in Council, or of any rules, regulations, or by-laws made by the Governor in Council in pursuance of a statute of Canada, or of the publication of such proclamation, order, rules, regulations or by-laws in the Canada Gazette. 2. Such proclamation, order, rules, regulations and by-laws and the publication thereof shall be judicially noticed. 55-56 V., c. 29, s. 894. See also Canada. Evidence Act secs. 17-23. 1129. Whenever it appears by any conviction made by a justice or stipendiary magistrate that the defendant has for defect in appeared and pleaded, and the merits have been tried, and the defendant has not appealed against the conviction, where an form. appeal is allowed, or if appealed against, the conviction has been affirmed, such conviction shall not afterwards be set aside or vacated in consequence of any defect of form whatever, but the construction shall be such a fair and liberal construction as will be agreeable to the justice of the case. 55-56 V., c. 29, s. 896. Defects of form.]—Where a summary conviction is in the regular course returned to a superior court of criminal jurisdiction without a writ of certiorari, sec. 1129 of the Code will not operate to prevent the conviction being quashed for a defect of form, where there is no evidence to shew that the defendant has not appealed against the conviction or that, if he did appeal, the conviction was affirmed upon the appeal. R. v. Hostyn, 9 Can. Cr. Cas. 138. In matters of summary conviction falling under the Criminal Code the depositions must be taken in writing, otherwise the conviction will be quashed. The irregularity is not a mere defect of form and is not cured by sec. 1129. Re Lacroix (1907), 12 Can. Cr. Cas. 297 (Que.). 1130. No conviction, sentence or proceeding under Part Proceedings XVI. shall be quashed for want of form; and no warrant of under Summary Trials commitment upon a conviction under the said Part shall be Part not held void by reason of any defect therein, if it is therein quashed for alleged that the offender has been convicted and there is a good and valid conviction to sustain the same. 55-56 V., c. 29, void. s. 800. Defects in "summary trials" procedure.]-Section 1130 does not validate a defective commitment if it recites a conviction which is on its face invalid. R. v. Gibson (1898), 2 Can. Cr. Cas. 302, per Rose, J. A conviction by a magistrate in respect of a charge in which he has jurisdiction only upon the consent of the accused to a summary trial, is not invalid merely because it omits to state that the accused so consented, if in fact the consent was given. The omission to state the consent in the conviction is a "want of form" which is cured by this section. R. v. Burtress (1900), 3 Can. Cr. Cas. 536 (N.S.). Where a conviction by a police magistrate on a "summary trial" of the accused imposes a longer term of imprisonment than is authorized by law, the warrant of commitment cannot be amended under sec. 1130 as in such case there is not "a valid conviction to sustain the same." R. v. Randolph (1900), 4 Can. Cr. Cas. 165 (Ont.). Where a return to a writ of habeas corpus, or to an order of the nature of such writ, specifies two warrants of commitment under the summary trials clauses for the same offence, and neither the second warrant nor such return declares the second warrant to be in substitution for or in amendment of the first which is irregular and bad, the prisoner should be discharged. R. v. Venot (1903), 6 Can. Cr. Cas. 209 (N.S.). want of form or held cial when 1131. If an application is made to quash a conviction, No action order or other proceeding made or had by or before a justice against offior stipendiary magistrate, on the ground that such justice or conviction stipendiary has exceeded his jurisdiction, the court or judge quashed. Proceedings relating to Part III. not void for de to which or whom the application is made, may, as a condition of quashing the conviction, order or other proceeding, if the court or judge thinks fit so to do, provide that no action shall be brought against the justice or stipendiary by or before whom such conviction, order or other proceeding was made or had, or against any officer acting thereunder or under any warrant issued to enforce any such conviction or order. 55-56 V., c. 29, s. 891. Protection of justice from civil action.]—The condition imposed as a term of quashing a justice's order under Code sec. 1131, is one which the applicant may accept or reject on the delivery of judgment, and, if it be rejected, the court may dismiss the application with costs although it finds that the justice exceeded his jurisdiction. The King v. Morningstar, 11 Can, Cr. Cas. 15, 11 O.L.R. 318. Quære, however, whether the court has not the power to make the conditional order to quash whether or not the applicant is satisfied with the form of the order. It is suggested in a note in vol. 11 Can, Cr. Cas. page 18, that the motion to quash is in itself a submission to the jurisdiction expressly conferred by sec. 1131 to provide protection to the convicting justice and to the officer enforcing the conviction, if the court thinks that such protection should be given. The section now applies to "a conviction, order or other proceeding," a phrase which will cover a search warrant. See R. v. Kehr, 11 Can. Cr. Cas. 52 and 61 (Ont.), decided before the addition of the words "or other proceeding." Quare whether further limitations on the right of civil action may not be imposed by provincial law. 1132. No action or other proceeding, warrant, judgment, order or other instrument or writing, authorized by any provisions of Part XII. relating to Part III. or necessary to carry fect of form. out its provisions, shall be held void or be allowed to fail for defect of form. R.S., c. 151, s. 23. See Code secs, 609-618. Part III. of the Code relates to the preservation of the peace in the vicinity of public works and consists of Code secs. 142-154, inclusive. PART XXIII. RETURNS. 1133. Every justice shall, quarterly, on or before the Returns second Tuesday in each of the months of March, June, Sep- concerning tember and December in each year, make to the clerk of the and moneys peace or other proper officer of the court having jurisdiction received. in appeal, as herein provided, a return in writing, under his hand, of all convictions made by him, and of the receipt and application by him of the moneys received from the defendants, 2. Such return shall include all convictions and other matters Extent of return. not included in some previous return, and shall be in form 75. 3. If two or more justices are present, and join in the con- Joint viction, they shall make a joint return. return. 4. Every justice, to whom any such moneys are afterwards Supplementpaid, shall make a return of the receipt and application thereof, ary return. to the court having jurisdiction in appeal as herein before provided, which shall be filed by the clerk of the peace or the proper officer of such court with the records of his office. ward Island 5. In the province of Prince Edward Island such return Time in shall be made to the clerk of the court of assize of the county Prince Edin which the convictions are made, and on or before the four- for return. teenth day next before the sitting of the said court next after such convictions are so made. 6. Every such return shall be made in the district of Return in Nipissing, in the province of Ontario, to the clerk of the peace Nipissing. for the county of Renfrew, in the said province. 55-56 V., c. 29, s. 902. Illegal fees.]—The provision of sec, 1133 of the Criminal Code which imposes a penalty on a justice of the peace if he wilfully receives "a larger amount of fees than by law he is authorized to receive," applies only to fees received under the summary convictions Part of the Code. McGillivray v. Muir. 7 Can. Cr. Cas. 360. A "wilful" receiving of unauthorized fees means receiving them intentionally with a knowledge that there is no legal right to collect them. Ibid. A justice of the peace is not entitled to fees in respect of a preliminary enquiry for an indictable offence, and an action lies against him to recover fees illegally collected. Ibid. Neglect or false return or taking unlawful fees. Penalty. Disposition of penalty. Saving. 1134. Every justice, before whom any conviction takes place, or who receives any such moneys, who neglects or refuses to make such return thereof, or wilfully makes a false, partial or incorrect return, or wilfully receives a larger amount of fees than by law he is authorized to receive, and every justice who upon or in connection with, or under colour or pretense of, any information, complaint or judicial proceeding or inquiry had or taken before him, wilfully exacts, receives, appropriates or retains any fees, moneys or payments which he is not by law authorized to receive or to be paid, shall incur a penalty of eighty dollars, together with costs of suit, in the discretion of the court, which may be recovered by any person who sues for the same by action of debt or information in any court of record in the province in which such return ought to have been or is made. 2. One moiety of such penalty shall belong to the person suing, and the other moiety to His Majesty for the public uses of Canada. 3. Nothing in this section shall have the effect of preventing any person aggrieved from prosecuting, by indictment, any justice, for any offence, the commission of which would have subjected him to indictment immediately before the first day of July, one thousand eight hundred and ninety-three. 55-56 V., c. 29, ss. 902 and 905; 4 E. VII., c. 9, s. 1. The provision of sec. 1134 of the Criminal Code which imposes a penalty on a justice of the peace if he wilfully receives "a larger amount of fees than by law he is authorized to receive," applies only to fees received under the summary convictions Part of the Code. The same construction is applicable to R.S.O. 1887, ch. 95, sec. 3, which is in similar terms as regards summary proceedings under provincial jurisdiction. McGillivray v. Muir (1903), 7 Can. Cr. Cas. 360, 6 O.L.R. 154. A "wilful" receiving of unauthorized fees means receiving them intentionally with a knowledge that there is no legal right to collect them. A justice of the peace is not entitled to fees in respect of a preliminary enquiry for an indictable offence, and an action lies against him to recover fees illegally' collected. Semble, a justice who wilfully receives fees to which he is not entitled is liable to indictment for extortion under the saving clause of this section and the common laws. McGillivray v. Muir (1903), 7 Can. Cr. Cas. 360. 6 O.L.R. 154. In Bowman v. Blyth (1856), 7 E. & B. 26, the action was brought under 26 Geo. II., ch. 14, sec. 2, which provides that where a clerk to a justice demanded or received any other or greater fee than was authorized by the table of fees to be taken by clerks of justices of the peace, to be settled by the justices at their general quarter sessions of the peace, which table of fees being approved by the next general sessions, etc., he was liable to a penalty of £20. In that case, a table of fees had been prepared by the quarter sessions, but was not approved, as required by the statute, and the Court of Queen's Bench held that, as it had not been |