A Treatise on Criminal Law as Applicable to the Dominion of Canada

mons, issued by a Magistrate, followed by appearance of the defendant, is sufficient. (a)

Where two or more persons may commit an offence under an Act, the information may be jointly laid against them. (b) But where the penalty is imposed upon each person, it is wrong to convict them jointly, even when they are charged on a joint information. (c)

If either the penalty be imposed, by the Act, on each person convicted, even where the offence would, in its own nature, be single, or if the quality of the offence be such that the guilt of one person may be distinct from that of the other, in either of these cases the penalties are several. (d)

At Petty Sessions, an information was laid against two defendants, charging that they did unlawfully use gun and kill two pheasants, contrary to the 1 & 2 Wm. 4, c. 32, s. 3. Each claimed to be tried separately, in order to call the other as a witness. The Justices refused, and heard the charge against both together, and convicted them, and a conviction was drawn up separately against each defendant imposing a penalty of £3:-Held, that it was in the discretion of the Justices whether they would hear the charge separately or not, that as the penalty was imposed on every person acting in contravention of the Statute, each defendant was separately liable to the whole penalty; and that, separate convictions were right, al though the prisoners were charged on a joint information. (e)

It is conceived that the ground of the decision, in this case, will apply to the Con. Stats. U. C., c. 104, s. 7, and that, where there are several defendants, they may be

(a) Corignan v. Harbour Comrs. Montreal, 5 L. C. R. 479.

(b) Reg. v. Littlechild, L. R. 6 Q. B. 295, per Lush, J.

(d) Ib. 296, per Hannen, J.

(e) Reg. v. Littlechild, supra.

tried together and separate penalties imposed on each, for s. 7 imposes a separate penalty on any person.

A conviction purporting to be made under Con. Stats. Can. c. 93, s. 28, charged that defendant, at a time and place named, wilfully and maliciously, took and carried away the window sashes out of a building, owned by one C., against the form of the Statute, etc., without alleging damage, injury or spoil to any property, real or personal, or finding damage to any amount:-Held, that the conviction should clearly shew whether the damage, injury or spoil complained of, is done to real, or personal property, stating what property, and in consequence of s. 29, where a private person is prosecutor, should also shew the amount, which the Justice has ascertained to be reasonable compensation for such damage injury or spoil. (a) The offence, created by the Statute, is damaging property, not taking and carrying it away. (b)

It is sufficient, if a conviction follows the forms set out in the Statutes, for the forms are intended as guides to Justices, and, otherwise, they would prove only snares to entrap persons. (c)

A conviction following the form, (L.) (N.B.) 1 Rev. Stat. 391, is sufficient. It would be no objection, however, if the conviction stated the name of the informer, or party, laying the information. (d)

Where a form of conviction was not sanctioned by any express Statute, a Justice was bound to follow such form, as would be sufficient under 2 Wm. 4, c. 4., which supplied a form to be used in all cases of summary conviction, except where a form is specially given for the particular case. (e)

(a) Reg. v. Caswell, 20 U. C. C. P. 275.

(b) Ib.

(c) Reg. v. Shaw, 23 U. C. Q. B. 618, per Draper, C. J.; Reid v. McWhinnie, 27 U. C. Q. B. 289; Reg. v. Hyde, 16 Jur. 337; Re Allison, 10 Ex. 561.

(d) Ex parte Eagles, 2 Hannay, 53, per Ritchie, C. J.; Reg. v. Johnson, 8 Q. B. 102.

(e) Moore v. Jarron, 9 U. C. Q. B. 233. See 32 & 33 Vic., c. 31, s. 50.

The name of the informant or complainant must in some form or other appear on the face of the conviction. (a) The place, for which the Justice acts, must be shewn, and it must be alleged that the offence was committed within the limits of his jurisdiction, or facts must be stated, which give jurisdiction beyond those limits. (b)

The offence, of which the defendant is convicted, must be stated with certainty, otherwise the conviction will be quashed. A conviction " for wilfully damaging, spoiling, and taking, and carrying away six bushels of apples of the said Rogers, whereby the defendant committed an injury to the said goods and chattels " was held not to contain a statement of an offence, for which a conviction could take place. (c)

Where an information, in a conviction, charged the defendant with measuring or surveying lumber, intended for exportation in violation of the Act of Assembly, 8 Vic., c. 81, and the evidence referred to three distinct acts, but it did not appear for which of them the defendant had been convicted:-Held, that the conviction was bad for uncertainty. (d)

A conviction adjudging the defendant to be imprisoned for twenty-five days, or payment of £5 and costs, in the alternative, is bad. (e)

A conviction, by two Justices for taking lumber feloniously or unlawfully, is bad, for it should not have been in the alternative. If the conviction was unlawful only, not felonious, it should have shewn how it was unlawful, and it should have shewn, also, that the offence came under our statute, which gave the Justices power to convict. (f)

(a) Re Hennesy, 8 U. C. L. J. 299.

(b) Reg. v. Shaw, 23 U. C. Q. B. 618, per Draper, C. J; Rex v. Edwards, 1 Ea. 278.

(d) Reg. v. Stevens, 3 Kerr, 356.

(e) Reg. v. Wortman, 4 Allen, 73.

(f) Reg. v. Craig, 21 U. C. Q. B. 552.

The petitioner was convicted, by a Court Martial held at the city of Montreal, on the 26th, 27th, 28th and 29th days of March, 1867, and on the 1st and 2nd days of April, 1867, on the following charge " for disgraceful conduct, in having at Montreal, Canada East, some time between the 17th January and 16th March, 1867, fraudulently embezzled or misapplied, about five hundred cords of wood, government property intrusted to his charge as an Assistant-Commissiariat-Storekeeper, and which, at at the latter date, was found deficient," and, thereupon, on the said conviction, the Court, forthwith, sentenced the petitioner, among other penalties, to be imprisoned, with hard labour, for six hundred and seventy-two days. The Court held that it did not appear there had been preferred against the petitioner, any specific charge, nor any conviction of him upon a specific, or positive charge, but a conviction in the alternative, one of the two being no offence created by the 17th article of the Mutiny Act, without any certainty, as to either of the two charges in the disjunctive, and that this was a matter of substance, and therefore, the warrant of commitment was null and void, and the petitioner, who had been committed to prison, was entitled to be set at liberty. (a)

In describing the offence in convictions, it is not sufficient to state, as the offence, that which is only the legal result of certain facts, but the facts themselves must be specified, so that the Court may judge whether they amount in law to the offence.

A conviction, by a Magistrate, stated that defendant did, on etc., at etc., being a public highway, use blasphemous language contrary to a certain by-law passed almost in the words of the Con. Stats. U. C. c. 54, s. 282 ss. 4, but there was no statement of the particular lan(a) Re Moore, 11 L. C. J. 94.

guage used, it was held bad as the statement in the conviction was only the legal result of certain facts, and the facts themselves were not set out. (a) The particular words used should have been stated.

As a general rule, where an Act in describing the offence makes use of general terms, which embrace a variety of circumstances, it is not enough to follow, in a conviction, the words of the Statute; but it is necessary to state what particular fact prohibited has been committed. But, in framing a conviction, it is, in general, sufficient to follow the words of the Statute, where it gives a particular description of the offence. Where a particular Act creates the crime, it may be enough to describe it in the words of the Legislature, but where the Legislature speaks, in general terms, the conviction must state what act in particular was done, by the party offending, to enable him to meet the charge. (b)

The legal effect of reversing or annulling a conviction is to render the sentence and imprisonment illegal, and not as for a crime. The rule has been laid down, that when judgment, pronounced upon a conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused; restored in his credit, his capacity, his blood and his estates, with regard to which last, though they be granted away by the crown, yet the owner may enter upon the grantee, with as little ceremony as he might enter upon a disseizor. (c)

Where a conviction, which had been affirmed on appeal to the Sessions, was brought up by certiorari, contrary to the 32 & 33 Vic., c. 30, s. 71, as amended by the

(a) Re Donnelly, 20 U. C. C. P. 165.

(b) Re Donnelly, 20 U. C. C. P. 167, per Hagarty, C. J.; and see Rer V. Sparling, 1 Str. 497; Reg. v. Scott, 4 B. & S. 368; Reg. v. Nott, 4 Q. B. 768, as to particular applications of these principles.

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