and to appear and receive judgment when called upon, if it appears to the Magistrate that, regard being had to the youth, character and antecedents of the offender, to the trivial nature of the offence and to any extenuating circumstances under which the offence was committed, it is advisable to so release him on probation of good conduct. (Code, Art. 971.)

789. Proceedings for Offences in Respect of Property Worth Over Ten Dollars. When any person is charged before a magistrate with theft or with having obtained property by false pretences, or with having unlawfully received stolen property, and the value of the property stolen, obtained or received exceeds ten dollars, and the evidence in support of the prosecution is, in the opinion of the magistrate, sufficient to put the person on his trial for the offence charged, such magistrate, if the case appears to him to be one which may properly be disposed of in a summary way, and may be adequately punished by virtue of the powers conferred by this part, shall reduce the charge to writing, and shall read it to the said person, and, unless such person is one who can be tried summarily without his consent, shall then put to him the question mentioned in section 786, and shall explain to him that he is not obliged to plead or answer before such magistrate, and that if he does not plead or answer before him, he will be committed for trial in the usual

course.

790. Punishment on Plea of Guilty in Such Case. If the person charged as mentioned in the next preceding section consents to be tried by the magistrate, the magistrate shall then ask him whether he is guilty or not guilty of the charge, and if such person says that he is guilty, the magistrate shall then cause a plea of guilty to be entered upon the proceedings, and sentence him to the same punishment as he would have been liable to if he had been convicted upon indictment in the ordinary way; and if he says that he is not guilty, the magistrate shall proceed as provided in section 786.

791. Magistrate May Decide not to Proceed Summarily.-If, in any proceeding under this part, it appears to the magistrate that the offence is one which, owing to a

previous conviction of the person charged, or from any other circumstances, ought to be made the subject of prosecution by indictment rather than to be disposed of summarily, such magistrate may, before the accused person has made his defence, decide not to adjudicate summarily upon the case; but a previous conviction shall not prevent the magistrate from trying the offender summarily, if he thinks fit so to do.

792. Election of Trial by Jury to be Stated on Warrant of Commital.-If, when his consent is necessary, the person charged elects to be tried before a jury, the magistrate shall proceed to hold a preliminary inquiry as provided in Parts XLIV. and XLV of the Code, ante, and if the person charged is committed for trial, shall state in the warrant of committal the fact of such election having been made.

793. Full Defence Allowed.-In every case of summary proceedings under this part, the person accused shall be allowed to make his full answer and defence, and to have all witnesses examined and cross-examined by counsel or solicitor.

794. Proceedings to be in Open Court.-Every court held by a magistrate for the purpose of this part shall be an open public court.

795. Procuring Attendance of Witnesses.-The magistrate before whom any person is charged under the provisions of this part, may, by summons, require the attendance of any person as a witness upon the hearing of the case, at a time and place to be named in such summons, and such magistrate may bind, by recognizance, all persons whom he considers necessary to be examined, touching the matter of such charge, to attend at the time and place appointed by him and then and there to give evidence upon the hearing of such charge; and if any person so summoned, or required or bound as aforesaid, neglects or refuses to attend in pursuance of such summons or recognizance, and if proof is made of such person having been duly summoned as hereinafter mentioned, or bound by recognizance as aforesaid, the magistrate before whom such person should have attended may issue a warrant to compel his appearance as a witness.

796. Service of Summons.-Every summons issued under the provisions of this part may be served by delivering a copy of the summons to the person summoned, or by delivering a copy of the summons to some inmate of such person's usual place of abode apparently over sixteen years of age; and every person so required by any writing under the hand of any magistrate to attend and give evidence as aforesaid, shall be deemed to have been duly summoned.

As to service of summons, see comments at pp. 108 and 193, ante.

797. Dismissal of Charge. Whenever the magistrate finds the offence not proved, he shall dismiss the charge, and make out and deliver to the person charged a certificate under his hand stating the fact of such dismissal.

798. Effect of Conviction.-Every conviction under this part shall have the same effect as a conviction upon indictment for the same offence.

799. Certificate of Dismissal a Bar to Further Proceedings.-Every person, who obtains a certificate of dismissal or is convicted under the provisions of this part, shall be released from all further or other criminal proceedings FOR THE

SAME CAUSE.

It has been held in England, under statutory provisions similar to the above Article 799, that, where a case summarily dealt with has been dismissed, by the magistrate or justice, on its merits, the defendant has the right ex debito justitia to receive the certificate of dismissal. (1)

The certificate of dismissal should only be granted when there has been a full hearing on the merits. If granted on a withdrawal of the charge before hearing, it will be no bar to subsequent proceedings for the same offence. (2)

A summary conviction for assault has been held to be a bar to a subsequent indictment for a felonious stabbing based on the same

(1) Hancock v.Somes 1 E. & E. 795; 28 L. J. M. C. 196. Costar v. Hetherington, 1 E. & E. 802; 28 L. J. M. C. 198.

(2) Reed v. Nutt, 24 Q. B. D. 669.

transaction (1) and it has been held a bar to an indictment for unlawful wounding and an assault occasioning actual bodily harm, arising out of the same circumstances. (2)

A summary conviction for assault has, however, been held not to be a bar to a subsequent indictment for manslaughter, in a case where the man, who was assaulted, afterwards died in consequence of the assault. (3)

It appears that the production of the certificate of dismissal is of itself sufficient evidence of such dismissal, without proof of the signature of the magistrate or justice; (4) and if the defendant appeared before the magistrate or justice, the recital, in the certificate, of the fact of a complaint having been made and of a summons having been issued, is sufficient evidence of these facts without producing the complaint or summons. (5)

800. Proceedings not to be Void for Defect in Form.-No conviction, sentence or proceeding under the provisions of this part shall be quashed for want of form; and no warrant of commitment upon a conviction shall be held void by reason of any defect therein, if it is therein alleged that the offender has been convicted, and there is a good and valid conviction to sustain the same.

801. Result of Hearing to be Filed in Court of Sessions.-The magistrate adjudicating under the provisions of this part shall transmit the conviction, or a duplicate of a certificate of dismissal, with the written charge, the depositions of witnesses for the prosecution and for the defence, and the statement of the accused, to the next Court of General or Quarter Sessions of the peace or to the court discharging the functions of a Court of General or Quarter Sessions of the peace, for the district,

(1) R. v. Stanton, 5 Cox, 324; R. v. Walker, 2 M. & Rob. 446.

(2) R. v. Elrington, 1 B. & S. 688; 31 L. J. M. C. 14; R. v. Miles, 24 Q. B. D. 423; 59 L. J. M. C. 56.

(3) R. v. Morris, L. R., 1 C, C. R. 90; 36 L. J. M. C. 84.

(4) See The Canada Evidence Act 1893, sec. 10. See also Art. 802 of the Code, infra.

(5) R. v. Westley 11 Cox, 139; Arch. Cr. Pl. & Ev. 21 Ed. 155.

county or place, there to be kept by the proper officer among the records of the court.

802. Evidence of Conviction or Dismissal.—A copy of such conviction, or of such certificate of dismissal, certified by the proper officer of the court, or proved to be a true copy, shall be sufficient evidence to prove a conviction or dismissal for the offence mentioned therein, in any legal proceedings.

803. Restitution of Property.-The magistrate by whom any person has been convicted under the provisions of this part may order restitution of the property stolen, or taken or obtained by false pretences, in any case in which the court, before whom the person convicted would have been tried, but for the provisions of this part, might by law order restitution.

As to the power of the Magistrate to order RESTITUTION, and as to the further power to order COMPENSATION to be made to a BONA FIDE PURCHASER of STOLEN PROPERTY, see pp. 270-273, ante.

Investigation.

S04. Remand for Further Whenever any person is charged before any justice or justices of the peace, with any offence mentioned in section 783 of the Code, and in the opinion of such justice or justices the case is proper to be disposed of summarily by a magistrate, as herein provided, the justice or justices before whom such person is so charged may, if he or they see fit. remand such person for further examination before the nearest magistrate in like manner in all respects as a justice or justices are authorized to remand a person accused for trial at any court, under Part XLV. section 586; (1) but no justice or justices of the peace, in any province, shall so remand any person for further examination or trial before any such magistrate in any other province. Any person so remanded for further examination before a magistrate in any city, may be examined and dealt with by any other magistrate in the same city.

805. Non-Appearance of Accused under Recognizance.-If any person suffered to go at large upon enter ing into such recognizance as the justice or justices are authorized,

(1) See p. 179, ante.