Canadian Criminal Cases. Reports of Cases in Criminal and Quasi-Criminal matters decided in the Courts of Canada and of the Provinces thereof. [SUPERIOR COURT FOR THE DISTRICT OF TRIAL BEFORE LYNCH, J., HEARING ON review befoRE TASCHEREAU, MATHIEU AND LORANGER, JJ. CLERMONT v. LAGACÉ. Assault-Civil Action-Conviction as Bar-Cr. Code 866. 1. Cr. Code, 866, does not apply to bar a civil action for assault, after conviction and payment of the fine, where such conviction is by a petit jury on a trial upon an indictment. Civil action for damages for assault. The defendant had been arrested on a charge laid under article 241 of the Criminal Code, 1892, by a brother of the plaintiff (acting with the latter's consent), for unlawful wounding of the plaintiff by the defendant, with intent to do grievous bodily harm. He was committed for trial to the Court of Queen's Bench, and was there found guilty of common assault, and fined $20, which he paid. The civil action was brought in respect of the same acts and circumstances upon which the criminal prosecution had been founded. It was argued for the plaintiff: (1) That Cr. Code, article 866, must be read in conjunction with articles 864 and 865; the evident intention is that it applies only where the com plainant has lodged a complaint before a justice for assault and battery, intending to submit to the summary jurisdiction of the magistrate. (2) The charge here was not one for common assault, and could not be disposed of summarily, and therefore article 866 does not apply. (3) The present plaintiff was not the complainant, and his action is not barred by a complaint laid by his brother, although the latter acted with the plaintiff's consent. (4) Article 866 of the Criminal Code is ultra vires, as it purports to affect "civil rights," the legislative jurisdiction regarding which is with the provincial legislatures and not with the Federal Parliament. The original enactment was 4-5 Vict. (Can.) c. 27, s. 28, which was reproduced in Con. Stat. of Canada (1859) c. 91, s. 44, and 32-33 Vict. (Can.) c. 20, s. 45. (5) That section 44 could not be revived by the latter Act which repeals chapter 91 in toto, for the power had in the meantime become vested in the Province, and that Pingault v. Symmes (1883) 7 Montreal Legal News 3, wrongly assumes that 32-33 Vict. (Can.) left the civil claim as it was previously. For the defendant it was argued: (1) That Cr. Code, 866, absolved the defendant from civil liability for the assault. (2) That the plaintiff had the option of either criminal or civil proceedings, and chose to have recourse to the criminal tribunal, and that the defendant having paid the fine the Code protects him from a second punishment for the same cause. MONTREAL, April 23, 1897. The following judgment was ordered by LYNCH, J. The Court having heard the witnesses produced by the parties, having heard their counsel on written factums, having examined the proceedings and proof of record, and having deliberated thereon. Seeing that plaintiff's action is brought to recover the sum of $999.99 for damages suffered by him in consequence of a serious assault committed upon him by defendant at Cartierville, in said district, on the 30th day of December, 1895; Seeing defendant's plea by which he denies the allegations of plaintiff's declaration, and alleges that by law he is released from any further liability, civil or criminal, inasmuch as having been convicted before the Court of Queen's Bench, Crown side, at Montreal, for the same cause, he has paid the sum adjudged against him, and that he is not responsible for the injuries sustained by the plaintiff, inasmuch as the latter provoked the difficulty and was the cause of the trouble; Considering that the provisions of article 866 of the Criminal Code, 1892, apply only to a conviction pronounced by a Justice of the Peace, in the exercise of his summary jurisdiction, upon complaint of a person who has been unlawfully assaulted or beaten, or on his behalf, and not in the case when the defendant was found guilty of an assault by the petit jury, at his trial on an indictment charging him with unlawfully wounding with intent to do some grievous bodily harm; Considering that although plaintiff's language and actions were of a nature to exceedingly annoy and provoke the defendant, the latter was not justified in the harsh and excessive treatment administered to plaintiff, and that he was largely responsible for the serious consequence which resulted to plaintiff ; Considering all the circumstances, and taking into account plaintiff's own conduct, it is by the Court estimated that plaintiff should recover from defendant the sum of $200.00 as damages; Doth condemn defendant to pay plaintiff said sum of $200.00 with interest from this day and costs, etc. MONTREAL, March 4, 1898. On the hearing "en revision" before Taschereau, Mathieu and Loranger, JJ., the above judgment was affirmed. Saint Pierre, Pelissier & Wilson, attorneys for plaintiff. Desmarais & Cordeau, attorneys for defendant. Note: Assault-Civil action-Conviction as bar. A summary conviction for "assault occasioning bodily harm" and the payment of the fine imposed has been held in Ontario not to bar a civil action. Nevills v. Ballard (1897), 1 Can. C.C. 434; but in the Province of Quebec it was held by Archibald, J., that upon a conviction by a magistrate under Cr. Code, sec. 783, on a charge of having committed "aggravated assault by unlawfully and maliciously inflicting upon another person grievous bodily harm," the civil action was barred on payment of the fine. Hardigan v. Graham (1897), 1 Can. C.C. 437. an If the complaint is not preferred by or on behalf of the person aggrieved, but by a constable of his own motion, and the person assaulted merely gives evidence at the hearing, his right of action will not be barred. Miller v. Lea (1898), 34 Can. Law Jour., 782 (C. A., Ont.) |