Page images
PDF
EPUB

CHAPTER X.

(Part LIV of the Code.)

SPEEDY TRIALS OF INDICTABLE OFFENCES.

762. Application.-The provisions of this part do not apply to the North-West Territories or the District of Keewatin.

763. Meanings of expressions.-In this part, unless the context otherwise requires,

(a.) the expression Judge" means and includes,-

(i.) in the province of ONTARIO, any judge of a county court, junior judge or deputy judge authorized to act as chairman of the General Sessions of the Peace, and also the judges of the provisional districts of Algoma and Thunder Bay, and the judge of the district court of Muskoka and Parry Sound, authorized respectively to act as chairman of the General Sessions of the Peace;

(ii.) in the province of QUEBEC, in any district wherein there is a judge of the sessions, such judge of sessions, and in any district wherein there is no judge of sessions but wherein there is a district magistrate, such district magistrate, and in any district wherein there is neither a judge of sessions nor a district magistrate, the sheriff of such district;

(iii.) in each of the provinces of NOVA SCOTIA, NEW BRUNSWICK and PRINCE EDWARD ISLAND, any judge of a county court ;

(iv.) in the province of MANITOBA, the Chief Justice, or a puisne judge of the Court of Queen's Bench, or any judge of a county

court;

(v.) in the province of BRITISH COLUMBIA, the Chief Justice or a puisne judge of the Supreme Court, or any judge of a county court;

(b.) the expression "County Attorney" or "Clerk of the Peace" includes, in the Provinces of Nova Scotia, New Brunswick and Prince Edward Island, any clerk of a county court, and, in the Province of Manitoba, any Crown Attorney, the Prothonotary of

[ocr errors]

the Court of Queen's Bench, and any Deputy Prothonotary thereof, any deputy Clerk of the Peace, and the deputy Clerk of the Crown and Pleas for any district in the said province.

764. Judge to be a Court of Record. The judge sitting on any trial under this part of the Code, for all the purposes thereof and proceedings connected therewith or relating thereto, shall be a Court of Record, and in every province of Canada, EXCEPT THE PROVINCE OF QUEBEC, such Court shall be called "The County Court Judge's Criminal Court" of the county or union of counties or judicial district in which the same is held.

2. The record in any such case shall be filed among the records of the Court over which the judge presides, and as part of such

records.

765. Offences triable under this part.-Every person committed to gaol for trial on a charge of being guilty of any of the offences which are mentioned in section 539, (1) as being within the jurisdiction of the General or Quarter Sessions of the Peace, may, with his own consent, (of which consent an entry shall then be made of record), and subject to the provisions herein, be tried in any province, under the following provisions, out of sessions and out of the regular term or sittings of the Court, whether the Court before which, but for such consent, the said person would be triable for the offence charged, or the Grand Jury thereof, is or is not then in session, and if such person is convicted, he may be sentenced by the judge.

This Article applies to the speedy trial of persons actually COMMITTED FOR TRIAL, in any province of the Dominion, for any of the offences triable before a Court of General or Quarter Sessions. But Article 785. post. contains provisions under which persons charged in ONTARIO, with offences, triable at Sessions may,-not only after being committed for trial, but even WHEN CHARGED with any such offence, before a police Magistrate, or before a Stipendiary Magistrate.-elect to be tried before such Magistrate.

766. Duty of Sheriff after committal of accused.-Every sheriff shall, within twenty-four hours after any (1) For Art. 539, see p. 82, ante.

prisoner charged, as aforesaid. is committed to gaol for trial, notify the judge in writing that such prisoner is so confined, stating his name and the nature of the charge preferred against him, whereupon, with as little delay as possible, such judge shall cause the prisoner to be brought before him.

767. Arraignment of accused before Judge,— The judge, upon having obtained the depositions on which the prisoner was so committed, shall state to him,

(a.) that he is charged with the offence, describing it;

(b) that he has the option to be forthwith tried before such judge without the intervention of a Jury, or to remain in custody, or under bail, as the Court decides, to be tried in the ordinary way by the Court having criminal jurisdiction.

2. If the prisoner demands a trial by Jury, the judge shall remand him to gaol; but if he consents to be tried by the judge, without a jury, the county solicitor, clerk of the peace, or other prosecuting officer shall prefer the charge against him for which he has been committed for trial, and if, upon being araigned upon the charge, the prisoner pleads guilty, the prosecuting officer shall draw up a record as nearly as may be in one of the forms MM or NN in schedule one of the Code, (1) such plea shall be entered on the record, which shall have the same force and effect as if passed by any Court having jurisdiction to try the offence in the ordinary

way.

Costs.-Article 832 of the Code provides that, upon any person being convicted of an indictable offence, any Court by which, and any Judge, under Part LIV, by whom judgment is pronounced or recorded, may,-in addition to such sentence as may otherwise be passed.-condemn such person to the payment of the whole or any part of the costs or expenses incurred in and about the prosecution and conviction for the offence of which he is convicted; and that the payment of such costs may be ordered to be made out of any monies taken from such person on his apprehension (if such monies are his own) or may be enforced at the instance of any person liable to pay or who has paid the same, in the same manner,

(1) For Forms MM and NN, see pp. 281, and 282, post.

(subject to the provisions of the Code) as the payment of any costs ordered to be paid by the judgment or order of any Court of competent jurisdiction in any civil action or proceeding may be enforced; that until the recovery of such costs and expenses from the person so convicted, or from his estate, the same shall be paid and provided for in the same manner as if this section (832) had not been passed; and that any money recovered in respect thereof from the person so convicted, or from his estate, shall be applicable to the reimbursement of any person or fund by whom or out of which such costs and expenses have been paid or defrayed. And it is provided by Article 835 of the Code that any costs ordered to be paid, by a Court pursuant to the foregoing provisions shall, in case there is no tariff of fees provided with respect to criminal proceedings, be taxed by the proper officer of the Court according to the lowest scale of fees allowed in such Court in a civil suit; and that if such Court has no civil jurisdiction, the fees shall be those allowed in civil suits in a Superior Court of the province according to the lowest scale.

The provision contained in the above Article, 832, is to the same effect as the Imperial statute, 33-34 Vict. c. 23, sec. 3, except that the latter only applies to treason and felony and not to convictions for misdemeanor: and the English Act does not contain the words. "if such moneys are his own," above italicised.

In a case in which a prisoner, arrested on the 4th April, was convicted at the following May Sessions of the Central Criminal Court, the Court after passing sentence, made under the above provision of the Imperial statute, an order for the payment of the costs of the prosecution out of the money taken from him at the time of his apprehension. On the 24th of April-between the time of his apprehension and his conviction-he had been adjudged bankrupt; and it was held-without deciding what would have been the case if the money in question, though in the possession of, had not really belonged to the prisoner, or if the act of bankruptcy had been previous to his apprehension-that the order was valid. on the ground that the subsequent bankruptcy could not affect the right of the Criminal Court to make the order, such right having vested at the time of the apprehension and before the bankruptcy. (1)

(1) R. v. Rober's, 43 L. J. M. C. 17; L. R 9 Q. B. 77.

Article 834 of the Code, provides that, if a person convicted on an indictment for assault, whether with or without battery and wounding, is ordered to pay costs as provided in section 832, he shall be liable unless the said costs are sooner paid, to three months' imprisonment, in addition to the term of imprisonment, if any, to which he is sentenced for the offence, and the court may, by warrant in writing, order the amount of such costs to be levied by distress and sale of the goods and chattels of the offender, and paid to the prosecutor, and the surplus, if any, arising from such sale, to the owner; and if such sum is so levied, the offender shall be released from such imprisonment.

Compensation to

Bona-Fide Purchaser of Stolen Property.—When any prisoner has been convicted, either summarily or otherwise, of any theft or other offence, including the stealing or unlawfully obtaining any property, and it appears to the court by the evidence, that the prisoner sold such property or part of it to any person who had no knowledge that it was stolen or unlawfully obtained, and that money has been taken from the prisoner on his apprehension, the court may, on application of such purchaser and on restitution of the property to its owner, order that out of the money so taken from the prisoner. (if it is his), a sum, not exceeding the amount of the proceeds of the sale, be delivered to such purchaser. (Code, Art. 837.)

Restitution of Stolen Property.-Article 838 of the Code, (as amended by 56 Vict. c. 32), provides that if any person, who is guilty of any indictable offence in stealing or knowingly receiving any property, is indicted for such offence by or on behalf of the owner of the property, or his executor or administrator, and convicted thereof, or is, under any of the provisions of the Code relating to the trial of indictable offences, tried before a judge or justice for such offence and convicted thereof, the property shall be restored to the owner or his representative. By clause 2 of the same Article, it is provided that, in every such case, the court or tribunal, before which such person is tried for any such offence, shall have power to award, from time to time, writs of restitution for the said property or to order the restitution thereof in a summary manner; and that the court or tribunal may also, if it sees fit, award restitution of the property taken from the

« EelmineJätka »