bable grounds, believes that any person is guilty of that offence is justified in arresting him without warrant, whether such person is guilty or not. (Code, Art. 25).

Every one is protected from criminal responsibility for arresting without warrant any person whom he, on reasonable and probable grounds, believes he finds committing by night any offence for which the offender may be arrested without warrant. (Code, Art. 26).

Justification of Arrest by Peace Officer of a Person Whom He Finds Committing an Offence-Every peace officer is justified in arresting without warrant any person whom he finds committing an offence. (Code, Art. 27)

Justification of Arrest of Person Found Committing Any Offence at Night.-Every one is justified in arresting without warrant any person whom he finds by night committing any offence.

2. Every peace officer is justified in arresting without warrant any person whom he finds lying or loitering in any highway, yard or other place, by night, and whom he has good cause to suspect of having committed or being about to commit any offence for which an offender may be arrested without warrant. (Code, Art. 28)

Arrest During Flight.-Everyone is protected from criminal responsibility for arresting without warrant any person whom he, on reasonable and probable grounds, believes to have committed an offence and to be escaping from and to be freshly pursued by those whom he, on reasonable and probable grounds, believes to have lawful authority to arrest that person for such offence. (Code, Art. 29).

It will noticed that, in some of the foregoing articles the word "justified" is used, while in others the words used are "protected from criminal responsibility." The different meanings intended to be conveyed by these two expressions are explained in the following extract, from the Royal Commissioners' report on the English Draft Code: There is a difference in the language used in the

sections in this part which probably requires explanation. Sometimes it is said that the person doing an act is justified in so doing under particular circumstances. The effect of an enactment using that word would be, not only to relieve him from punishment, but also to afford him a statutable defence against a civil action for what he had done. Sometimes it is said that the person doing an act is protected from criminal responsibility' under particular circumstances. The effect of an enactment using this language is to relieve him from punishment, but to leave his liability to an action for damages to be determined on other grounds, the enactment neither giving a defence to such an action where it does not exist, nor taking it away where it does."

Statutory Power of Arrest.-The Code provides that nothing therein contained shall take away or diminish any authority given by any Act in force for the time being to arrest, detain or put any restraint on any person. (Code, Art. 30).

Justification of Force used in Arrests, &c.— Every one justified or protected from criminal responsibility, in executing any sentence, warrant or process, or in making any arrest, and everyone lawfully assisting him, is justified or protected from criminal responsibility. as the case may be, in using such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, process or warrant can be executed or the arrest effected by reasonable means in a less violent manner. (Code, Art. 31).

This article is based upon the principle that, as in making an arrest or in executing any sentence, warrant, order, or process, a peace officer or other person legally authorized acts under legal command or compulsion, he may, if resisted, repel force with force; and if, in using reasonable and necessary force to overcome resistance, the officer should happen, in the struggle, to kill the person resisting or any of his accomplices, he will be exonerated; while. on the other hand, if death should ensue to the officer or any one assisting him. the persons so resisting will be guilty of murder. (1).

(1) Fost. 270, 271, 318; 1 Hale, 494; R. v. Porter, 12 Cox, C. C. 444.

Duty of Persons ́ Arresting.—It is the duty of everyone executing any process or warrant to have it with him, and to produce it, if required.

It is the duty of every one arresting another, whether with or without warrant, to give notice, where practicable, of the process or warrant under which he acts, or of the cause of arrest.

A failure to fulfil either of the two duties last mentioned shall not of, itself, deprive the person executing the process or warrant, or his assistants, or the person arresting, of protection from criminal responsibility, but shall be relevant to the inquiry whether the process or warrant might not have been executed, or the arrest effected, by reasonable means in a less violent manner. (Code, Art. 32).

Preventing Escape by Flight.-Every peace officer proceeding lawfully to arrest, with or without warrant, any person for any offence for which the offender may be arrested without warrant, and every one lawfully assisting in such arrest, is justified, if the person to be arrested takes to flight to avoid arrest, in using such force as may be necessary to prevent his escape by such flight, unless such escape can be prevented by reasonable means in a less violent manner. (Code, Art. 33)

Every private person proceeding lawfully to arrest without warrant any person for any offence for which the offender may be arrested without warrant is justified, if the person to be arrested takes to flight to avoid arrest, in using such force as may be necessary to prevent his escape by flight, unless such escape can be prevented by reasonable means in a less violent manner: Provided, that such force is neither intended nor likely to cause death or grievous bodily harm. (Code, Art. 34).

Every one proceeding lawfully to arrest any person for any cause other than such offence as in the last section mentioned is justified, if the person to be arrested takes to flight to avoid arrest, in using such force as may be necessary to prevent his escape by flight, unless such escape can be prevented by reasonable means in a less violent manner: Provided such force is neither intended nor likely to cause death or grievous bodily harm. (Code, Art. 35)

Preventing Escape or Rescue after Arrest,Every one who has lawfully arrested any person for any offence for which the offender may be arrested without warrant is protected from criminal resposibil ty in using such force in order to prevent the rescue or escape of the person arrested as he believes, on reasonable grounds, to be necessary for that purpose. (Code, Art. 36).

Every one who has lawfully arrested any person for any cause. other than an offence for which the offender may be arrested without warrant, is protected from criminal responsibility in using such force in order to prevent his escape or rescue as he believes, on reasonable grounds, to be necessary for that purpose: Provided that such force is neither intended nor likely to cause death or grievous bodily harm. (Code, Art. 37.)

CHAPTER VIII.

PROSECUTION OF INDICTABLE OFFENCES; COMPELLING APPEARANCE; LAYING INFORMATION; SUMMONS; WARRANTS OF ARREST SEARCH WARRANTS.

Modes of Prosecution of Indictable Offences Before the Code. Before the coming into force of the criminal code, there were four different modes of proceeding against a person accused of having committed an indictable offence,—first, by taking him before a magistrate and having him committed for trial; second, by means of an indictment, without being so committed; third, in the case of homicide, by committal for trial upon a coroner's inquisition; and fourth, by means of a criminal information filed either by the Attorney-General, ex-officio, or by the clerk of the Crown, by leave of a Superior Court. (1)

Present Modes of Prosecution.-No one, except the Attorney-General or some one by his direction, can now, in any case or for any offence, prefer a bill of indictment before the grand jury, unless he has first had the charge investigated before

(1) As to criminal informations, see Crankshaw's Cr. C. 244-248.

a magistrate or justice of the peace, and been bound over to prosecute, or unless he has the written consent of a court of criminal jurisdiction, or of the Attorney-General, or of the court before which the bill of indictment is to be preferred; (1) and, as criminal informations are very rare, and, as no one can now be tried upon a coroner's inquisition, (2) the practical result and the general rule is that no one is now tried upon an indictment without a previous preliminary enquiry into the charge, before a magistrate or justice of the peace.

North-West

Territories

and

Keewatin.-No grand jury is summoned or sits in the North-West Territories, (3) nor in the District of Keewatin. (4)

Compelling Appearance Before Justices. Every justice may issue a warrant or summons as hereinafter mentioned to compel the attendance of an accused person before him, for the purpose of preliminary inquiry, in any of the following cases :

(4.) If such person is accused of having committed in any place whatever an indictable offence triable in the province in which such justice resides, and is, or is suspected to be, within the limits over which such justice has jurisdiction, or resides or is suspected to reside within such limits;

(b.) If such person, wherever he may be, is accused of having committed an indictable offence within such limits;

(c) If such person is alleged to have anywhere unlawfully received property which was unlawfully obtained within such limits;

(d.) If such person has in his possession, within such limits, any stolen property. (Code, Art. 554).

Offences Committed in Certain Parts of Ontario. All offences committed in any of the unorganized tracts of country in the province of Ontario, including lakes, rivers,

(1) Code Art. 641.

(2) Code, Art. 642.

(3) R. S. C., c. 50, sec. 65. (4) R. S. C., c. 53, sec. 27.