Summary conviction six months. Twelve months. 1142. (As amended 1907). In the case of any offence punishable on summary conviction, if no time is specially limited for making any complaint, or laying any information, in the Act or law relating to the particular case, the complaint shall be made, or the information laid, within six months from the time when the matter of the complaint or information arose, except in the Northwest Territories and the Yukon Territory, in all which Territories the time within which such complaint may be made, or such information laid, shall be twelve months from the time when the matter of the complaint or information arose. 55-56 V., c. 29, s. 841; R.S., c. 50, s. 81; 61 V., c. 6, s. 9; 6 & 7 E. VII., c. 8. Time limitation.]-This section was originally sec. 5 of 52 Vict., ch. 45 (Can.), an Act to amend the Summary Convictions Act, and its provisions apply only to cases arising, and in which proceedings are had, under the provisions regarding summary convictions. R. v. Edwards (1898), 2 Can. Cr. Cas. 96 (Ont.); R. v. McKinnon (1902), 5 Can. Cr. Cas. 301. An information may be laid and proceedings taken thereon for the prosecution by indictment of an indictable offence, although the case is one which might have been summarily tried by a justice had the information been laid within the six months' limit provided by Cr. Code sec. 1142, and although that period had expired before the laying of the information. R. v. Edwards (1898), 2 Can. Cr. Cas. 96. And as an indictment for rape includes the lesser charge of assault, a verdict thereon of common assault is properly followed by a conviction although the information was laid more than six months after the offence was committed. Ibid. A prosecution under the revenue tax laws of a province to enforce payment of the tax is a proceeding for the recovery of a Crown debt, and is not governed by a general statute of limitation, not expressly applying to the Crown, but requiring complaints in matters of summary conviction to be made within three months from the time when the matter of the complaint arose. R. v. Lee How (1901), 4 Can. Cr. Cas. 551 (B.C.). Where an information under a licensing law does not shew that the alleged offence was committed within the statutory limit prior to the laying of the information, the magistrate has no jurisdiction. R. v. Breen (1904), 8 Can. Cr. Cas. 146 (N.S.); R. v. Boutilier, 8 Can. Cr. Cas. 82; R. v. Adams (1892), 24 N.S.R. 559. The defect in the information is not cured by the appearance of the accused before the magistrate and the taking by the latter of evidence for the prosecution unless such evidence discloses a prima facie case of an offence under the statute, within the statutory limit. R. v. Breen (1904), 8 Can. Cr. Cas. 146. Where a summons for an offence under a statute relating to adulteration of food and drugs had been signed by a magistrate who had not taken the information, and the limitation of time within which the statute required that the summons under it should be served had expired before the hearing, and both parties appeared at the hearing, but the defendant objected to the irregularity, the conviction was quashed upon the ground that there was no valid summons, and that, as the provisions of the statute had not been complied with, there was no jurisdiction. Dixon v. Wells (1890), 25 Q.B.D. 249. Where the limitation of time for bringing a prosecution is contained in separate section of the statute creating the offence, it is not essential to the validity of the conviction that it should shew on its face that the limitation has not been exceeded. Neither the summary conviction nor the warrant of commitment for a third offence against the Canada Temperance Act need shew that the information leading to a prior conviction was laid within the statutory period of three months after the offence. R. v. Clark (No. 2) (1906), 12 Čan. Cr. Cas. 485. Actions against Persons Administering the Criminal Law. action. 1143. Every action and prosecution against any person for Time and anything purporting to be done in pursuance of any Act of the place of Parliament of Canada relating to criminal law, shall, unless otherwise provided, be laid and tried in the district, county or other judicial division, where the act was committed, and not elsewhere, and shall not be commenced except within six months next after the act committed. 55-56 V., c. 29, s. 975. 1144. Notice in writing of such action and of the cause Notice in thereof, shall be given to the defendant one month at least before writing. the commencement of the action. 55-56 V., c. 29, s. 976. Notice of action.]-The tendency of courts has been rather to extend than restrict the protection afforded to peace officers professing to act in the execution of their duty by notices of action. White v. Hamm (1903), 36 N.B.R. 237, 240, per Barker, J. Although the defendant's conduct may have been illegal, it is just the illegality for which the legislature intended a person should have notice of action in order to enable him, if he choose, to render amends. When it is said that a man does a thing "in pursuance of" an Act of Parliament, it does not necessarily mean that he does it in exact execution of the Act, or in exact accordance with its provisions. The word is applicable where a man endeavours, though unsuccessful, to follow the Act. Read v. Coker, 17 Jur. 990. There is a class of cases where actions have been brought against persons, who, acting in supposed pursuance of an Act of Parliament, e.g., the Larceny Act, have arrested others as having been "found committing" an offence against the Act, and the question has arisen whether they were "found committing" the offence, or were "immediately" apprehended within the meaning of the Act so as to justify the arrest. The right of the defendant in such cases to notice of action has been said to depend upon whether he bona fide believed in the existence of a state of facts which, had they existed, would have afforded a defence to the action, and it is laid down that this is the proper question in such cases to submit to the jury. Such are the cases of Heath v. Brewer, 15 C.B.N.S. 803; Hermann v. Seneschal, 13 C.B.N.S. 392; Roberts v. Orchard, 2 H. & C. 769; Chamberlain v. King, L.R. 6 C.P. 474; Griffith v. Taylor, 2 C.P.D. 194. There is another class of cases, of which Agnew v. Jobson. 13 Cox C.C. 625, is an illustration, where a justice has done some act "wholly alien to his jurisdiction." for doing which he had "no other authority than any other person in the realm, no pretence for authority or for saying that he was within the precincts of the law." Norton v. Miller, 2 Chitty 140. In such cases the defendant is not entitled to notice of action. See also Sinden v. Brown, 17 Ont. App. 173; McGuiness v. Dafoe, 3 Can. Cr. Cas. General issue. Tender or payment into court. Judgment if action not brought in time, etc. Costs. No costs 139, 23 Ont. App. R. 704; Friel v. Ferguson, 15 U.C.C.P. 584; Neil v. McMillan, 25 U.C.R. 485; Usill v. Hales, 3 C.P.D. 319; Cummins v. Moore, 37 U.C.R. 130; Venning v. Steadman, 9 Can. S.C.R. 206. 1145. In any such action the defendant may plead the general issue, and give the provisions of this title and the special matter in evidence at any trial had thereupon. 55-56 V., c. 29, s. 977. 1146. No plaintiff shall recover in any such action if tender of sufficient amends is made before such action brought, or if a sufficient sum of money is paid into court by or on behalf of the defendant after such action brought. 55-56 V., c. 29, s. 978. 1147. If such action is commenced after the time limited as aforesaid for bringing the same, or is brought or the venue laid in any other place than as aforesaid, a verdict shall be found or judgment shall be given for the defendant; and thereupon, or if the plaintiff becomes nonsuit, or discontinues any such action after issue joined, or if upon demurrer or otherwise judgment is given against the plaintiff, the defendant shall, in the discretion of the court, recover his full costs as between solicitor and client, and shall have the like remedy for the same as any defendant has by law in other cases. 2. Although a verdict or judgment is given for the plaintiff unless action in any such action, such plaintiff shall not have costs against approved. the defendant, unless the judge before whom the trial is had certifies his approval of the action. 55-56 V., c. 29, s. 979. Other pro remain. 1148. Nothing herein shall prevent the effect of any Act in tecting Acts force in any province of Canada, for the protection of justices or other officers from vexatious actions for things purporting to be done in the performance of their duty. 55-56 V., c. 29, s. 980. Criminal proceedings as a justification.]-Where the justices have a general jurisdiction over the subject matter upon which they have issued a warrant of commitment to a gaoler, the gaoler is not liable to an action, though their proceedings are erroneous; but it is otherwise if the justices were acting wholly out of their jurisdiction. Ferguson v. Adams (1848), 5 U.C.Q.B. 194. A conviction made by a magistrate protects him from an action of trespass in respect to the enforcement of the same, so long as it has not been set aside. Gates v. Devenish (1849), 6 U.C.Q.B. 260. In an action against a magistrate for trespass and illegal seizure of goods, in order to shew a good justification it is necessary that the de fendant should give in evidence a conviction not illegal on the face of it, and a warrant of distress supported by the conviction, and not on the face of it an illegal warrant. In a case where a magistrate's conviction was for "wilfully damaging, spoiling and taking awav six bushels of apples of A.B., whereby C.D. committed an injury to the said goods and chattels of the said A.B." and the warrant recited that "judgment was given against C.D. in a suit of A.B. v. C.D. for a misdemeanour in taking apples by force and violence off and from the presence of A.B.," it was held that the conviction did not support the warrant; and also that neither the conviction nor the warrant contained a statement of an offence for which such a conviction could take place. Eastman v. Reid (1850), 6 U.C.Q.B. 611. under Part III., six 1149. Every action brought against any commissioner Actions under Part III. of this Act or any justice, constable, peace officer or other person, for anything done in pursuance of the months. said Part, shall be commenced within six months next after the alleged cause of action arises; and the venue shall be laid or Venue. the action instituted in the district or county or place where the cause of action arose; and the defendant may plead the general issue and give this Act and the special matter in evidence. action not 2. If such action is brought after the time limited, or the Judgment if venue is laid or the action brought in any other district, county brought in or place than in this section prescribed, the judgment or verdict time, etc. shall be given for the defendant; and in such case, or if the judgment or verdict is given for the defendant on the merits, or if the plaintiff becomes non-suited or discontinues after appearance is entered, or has judgment rendered against him on demurrer, the defendant shall be entitled to recover double Double costs. R.S., c. 151, s. 24. Part III. of the Code relates to the preservation of the peace in the vicinity of public works, and includes secs, 142-154. costs. under months. 1150. All actions for penalties arising under the provisions Actions for of section eleven hundred and thirty-four shall be commenced penalties within six months next after the cause of action accrues, and section 1134 the same shall be tried in the district, county or place wherein within six such penalties have been incurred; and if a verdict or judgment passes for the defendant, or the plaintiff becomes non-suit, or discontinues the action after issue joined, or if, upon demurrer or otherwise, judgment is given against the plaintiff, the defendant shall, in the discretion of the court, recover his costs Costs. of suit, as between solicitor and client, and shall have the like remedy for the same as any defendant has by law in other 55-56 V., c. 29, s. 904. cases. Enforcing conviction under section 765, no action. 1151. No action or proceeding shall be commenced or had against a justice for enforcing a conviction, order or determination affirmed, amended or made by the court under section seven hundred and sixty-five. 55-56 V., c. 29, s. 900. Section 765, referred to in sec. 1151, deals with "cases stated" for the opinion of a superior court in matters of summary conviction. |