be done may, upon an affidavit of the facts, apply, in the province of Ontario, to the High Court, or a County Court judge, and, in the provinces of Nova Scotia and New Brunswick, to the Supreme Court, or a judge thereof, for a rule calling upon the justice and also upon the party to be affected by such act, to show cause why such act should not be done, and if, after service of such rule, good cause be not shown against it, the court may make the rule absolute, with or without costs, as may seem meet; and the justice or stipendiary magistrate, upon being served with the rule absolute, shall obey the same, and do the act required; and no action or proceeding shall be commenced or prosecuted against him for having obeyed such rule. (1)

The course here provided is not intended simply for the benefit of justices, or confined to cases in which their jurisdiction is doubtful; but it extends to all cases in which they refuse to do an act relating to the duties of their office. (2)

It does not apply where a mandamus would not have been granted; (3) nor is it intended for cases in which the justice has heard and adjudicated and done what he believes to be his duty. whatever may be the conclusion to which, in the exercise of his discretion, he has arrived. (4) It applies only to cases in which the magistrate does not consider the propriety of doing or not doing the act in question. (5)

(1) R. S. O., c. 73, sec. 6; R. S. N. S. (1884), c. 101, sec. 25; C. S. N. B. (1877), c. 90, sec. 5.

(2) R. v. Aston, 1 L. M. & P. 491; R. v. Philimore, L. R. 14 Q. B. D. 474 n.; 51 L. T. N. S. 245; R. v. Biron, 51 L. T. N. S. 429.

(3) R. v. Bristol, J. J., 18 Jur. 426 n.

(4) Re Clee & Osborn, 21 L. J. M. C. 112; R. v. Dayman, 26 L. J. M. C. 129; R. v. Vaughan, 9 B. & S. 329.

(5) Ex parte Lewis, 16 Cox 449.

SECOND DIVISION.

Parties to Crimes; Extent of the Criminal Law as to Time, Persons, and Place; Special Restrictions.

CHAPTER IV.

PARTIES TO THE COMMISSION OF OFFENCES.

Principal Offenders.—Every one is a party to and guilty of an offence who

(a) actually commits it; or

(b) does or omits an act for the purpose of aiding any person to commit the offence; or

(c) abets any person in the commission of the offence; or (d) counsels or procures any person to commit the offence.

If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was or ought to have been known to be a probable consequence of the prosecution of such common purpose. (Code, Art. 61.)

Every one who counsels or procures another to be a party to an offence of which that other is afterwards guilty, is a party to that offence, although committed in a way different from that which was counselled or suggested.

Every one who counsels or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such counselling or procuring, and which the person counselling or procuring knew, or ought to have known, to be likely to be committed in consequence of such counselling or procuring. (Code, Art. 62.)

The distinctions between principals of the first and second degree and between principals and accessories before the fact are here done away with, and all are expressly made principals or parties to, and equally guilty of an offence, who (a) actually commit it, (b) who do or omit anything to help its commission, (c) who abet or assist at its commission, or (d) who counsel or procure its commission.

In reality, and for all practical purposes, the distinctions between principals and accessories before the fact were removed years ago both in England and in Canada; (1) and have since existed only in name.

The Criminal Code has dropped these unnecessary nominal distinctions, and it gives only two classes of persons as being, in regard to the degree of their guilt, parties to or implicated in a criminal offence, namely, principals, and accessories after the fact.

A principal may be the actual perpetrator of the act, that is, the one who, with his own hands or through an innocent agent, does the act itself; he may be one who, before the act is done, does or omits something to help its commission; he may be one who counsels or procures the doing of it, or who does it through the medium of a guilty agent; or he may be one who is present, aiding and abetting another in the doing of it.

Actual Perpetrator with His Own Hands.—To be the actual perpetrator of the deed, with his own hands, the offender may or may not be present when it is consummated.

A.. purposely lays poison for B, who takes it, and dies from it. A, although absent when the poison is taken, is the actual perpetrator of the deed. (2)

Actual Perpetrator Through Innocent Agent. -To be the actual perpetrator of the deed, by means of an innocent agent, is, for instance, where an offender, who may be absent when the act is done, uses, as an instrument to effect his purpose, a

(1) 24 and 25 Vic. (Imp.), c. 94; R. S. C., c. 145.

(2) Fost. 349; 1 Russ. Cr., 5 Ed., 161; Burb. Dig. Cr. L. 42; Vaux's Case, 4 Co. 44; Bish. New Cr. L. Com., s. 651. See also R. v. Kelly, C. & K. 379.

child under years of discretion, a madman or other person of defective mental capacity, or any one excused from responsibility by ignorance of fact or other cause. (1)

Where A induced B, a child of nine, to take money from his father's till, and give it to him, A, it was left to the jury to say whether B was acting unconsciously of guilt at the dictation and as the innocent agent of A. (2)

A gives to B, a note which he knows is forged, and asks him to get it cashed. If B gets it cashed, not knowing it to be forged. the innocent uttering by him is the guilty uttering of A, though A is absent when it is done. (3)

If a person employed as an instrument is aware of the nature of the act, but merely concurs in it, in order to detect and punish the person employing him, he is, in that case, also considered and treated as an innocent agent. (4)

Rendering Aid Beforehand,-A person who, before the commission of an offence, does something to aid in its being committed, may also be a principal, without being present when it is actually committed or completed.

A, a servant, let B into his master's house to steal therein his master's money. B continued inside until he committed the theft, but A left the house before the theft was actually committed. A was a party to the offence; (5) and would now be held a principal.

A, a servant, unlocks the door of the house, that B may enter and steal therein, which he does about 20 minutes after A has left the house. A is a principal offender. (6)

Counselling or Advising an Offence.-A person who counsels or procures the commission of an offence, or who

(i) Fost. 349; 1 Bish. Cr. Law Com. s. 651.

(2) R. v. Manley, 1 Cox. C. C. 104.

(3) R. v. Palmer & Hudson, 1 New Rep, 96.

(4) R. v. Bannen, 2 Mood, C. C. 309; 1 C. & K. 295.

(5) R. v. Tuck well, C. & M. 215; 1 Russ. Cr. 158.

(6) R. v. Jeffries & Bryant, Gloucester Spr. Ass. 1848, Cresswell & Patterson, JJ., MSS., S. G., 3 Cox, C. C., 85; 1 Russ. Cr. 159.

does it through the medium of a guilty agent is necessarily absent when the offence is actually committed; or, if present, he would be doing or aiding at the very act itself. It seems to be in the very nature of things that there should be no distinction drawn between the guilt of one who procures a crime to be done and that of the agent who does it for him; or, at least, the distinction, if any, should not be in favor of the procurer. It is only right that the procurer or any one who commits an offence by the agency of another should be treated as a principal, whether his agent or instrument be a guilty or an innocent one for qui facit per alium facit per se,-what one causes to be done by another is regarded as done by himself. (1)

The procurement may be personal between the procurer and the doer; or it may be through the intervention of a third party; and it will be sufficient even though the employer merely direct his agent to procure some other person, without naming him. (2) It may be direct,-by hire, counsel, or command, or by conspiracy; or it may be indirect,-by expressly evincing. (that is, evincing by some words or actions), a liking for, approbation of, or assent to another's criminal design of committing an offence. (3) Still, a mere silent acquiescence would not be sufficient. (4)

The procurement must be continuing; for if the procurer repent, and, before the offence is committed, actually countermand his order, and the person whom he has ordered counselled or procured persists in committing the offence, in spite of the countermand, it seems that the original contriver will not be held responsible as a party to the offence.; (5) but, by having counselled the commission of the crime, he may be held guilty of an attempt to commit it, notwithstanding his subsequent repentance. For when a person with criminal intent advises another to commit an offence which the other does not commit, the soliciting or advising, in that case, constitutes, on the part of the person counselling and advising, an attempt to commit the offence solicited by him. (6)

(1) Broom's Leg. Max., 2 Ed. 643; Co. Lit. 258 a.

(2) Fost. 121, 125; R. v. Cooper, 5 C. & P. 535.

(3) R. v. Cooper, 5 C. & P. 535.

(4) R. v. Atkinson, 11 Cox C. C. 330.

(5) Arch. Cr. Pl. 11.

(6) R. v. Gregory, L. R. 1 C. C. 77; 10 Cox, C. C. 459.