TABLE OF OFFENCES UNDER TITLE VI.-Continued. ART. 44 486 491 495 38 511 39 512 507 509 510 514 515 521 Injuries to fences, etc 507A Injuries to Harbour Bars.. 503 Injuries to trees, etc., wheresoever 521 NON-INDICTABLE OFFENCES. OFFENCE. Recklessly setting fire to forest, etc., Wilfully injuring goods, etc., in rail- Fastening any vessel, etc., to a buoy, etc 513 Keeping cockpit Injuries to vegetable productions in Injuries to cultivated roots, etc....... PUNISHMENT. Criminal breach of contract by a mu- company Fine $50. In default 6 Penalty $20, (above va- ......... Penalty $10; or one : Penalty, $100 or 3 Injuries not otherwise provided for Penalty $20 (5) do Fine $400; or six months Summary [Two Jus[tices.] Penalty $50 or 3 months Penalty $50 or 3 months TRIBUNAL. Summary. do Summary do do do do Summary [Two Justices.] Penalty $100.... do Summary. Penalty $20 or 30 days.. do Fine $100 or 3 months.. Summary [Two Justices.] do do do (1) This is an Indictable offence; but may be dealt with by the Magistrate, summarily, when the consequences have not been serious (2) This is indictable also. (3) This offence is indictable when committed after a previous conviction (See p. 502, ante.) (4) This is in addition to the amount of the injury done. (5) This is in addition to the amount of injury done. (6) This offence is indictable if committed after two previous convictions and is then punishable by two years imprisonment. (See p. 302, anle.) (7) This may be prosecuted either by indictment or summarily. No 47 48 49 TABLE OF OFFENCES UNDER TITLE VI.-Continued. ART. 449 450 451 66 452 512 525 522 Injuring copy provisions, so posted up. Penalty $10 .... Fine $100 or 3 months See remarks at pp. 503 and 504, ante. as to Summary Trials of certain indictable offences, including theft of or obtaining by false pretences or receiving anything of a value not exceeding ten dollars, and also as to Fines, Sureties, and Restitution. 513 NON-INDICTABLE OFFENCES. OFFENCE. 514 * 515 PUNISHMENT. LIMITATION OF TIME FOR PROSECUTING OFFENCES UNDER TITLE VI. Fine $100 or 3 months.. do Forgery of trade marks and offences TRIBUNAL. Cruelty to animals. Keeping cockpit. Violating provisions as to convey- ...... Summary. Refusing Peace officer admission to do Three years. (See Art. 551a) Three months. (See Art. 551ej Three months. (See Art. 551e.) Three months. (See Art. 551e Three months. (See Art. 551e) Article 841, post. (in all cases not otherwise limited) limits the time, for the commencement of the prosecution of any offence punishable on summary conviction, to six months from the time when the matter of complaint or information arose, except in the North West Territories, where the limitation (in such cases when not otherwise provided for) is twelve months Article 930 prescribes, by two years, all actions suits or informations (not otherwise expressly limited), when the same are for the recovery of the penalties or forfeitures referred to in Article 929, post. See comments and authorities under Art. 551, post, as to what is the commencement of prosecution. (1) This may be prosecuted either by indictment or summarily. TITLE VII. PROCEDURE. PART XLI. GENERAL PROVISIONS. 533. Power to make rules. Every Superior Court of Criminal Jurisdiction may at any time, with the concurrence of a majority of the judges thereof present at any meeting held for the purpose, make rules of court, not inconsistent with any statute of Canada, which shall apply to all proceedings relating to any prosecution, proceeding or action instituted in relation to any matter of a criminal nature, or resulting from or incidental to any such matter, and in particular for all or any of the purposes following : (a.) For regulating the sittings of the Court or of any division thereof, or of any judge of the court sitting in Chambers, except in so far as the same are already regulated by law. (b.) For regulating in criminal matters, the pleading, practice and procedure in the court, including the subjects of mandamus, certiorari, habeas corpus. prohibition, quo warranto, bail and costs, and the proceedings under section nine hundred of this Act. (c.) Generally for regulating the duties of the officers of the Court and every other matter deemed expedient for better attaining the ends of justice and carrying the provisions of the law into effect. 2. Copies of all rules made under the authority of this section shall be laid before both Houses of Parliamant at the session next after the making thereof, and shall also be published in the Canada Gazette. 52 V., c. 40. 534. Civil remedy not suspended.-After the commencement of this Act no civil remedy for any act or omission shall be suspended or affected by reason that such act or omission amounts to a criminal offence. Before the enactment of the present Code, there were various statutes expressly declaring that, in connection with certain specified offences, a person's civil remedy should not be lessened or affected. By the above Article the same principle is extended to all offences; and all doubt is thereby removed from a question which was not altogether free from uncertainty. For, although, in regard to section 430 of the English Draft Code, (which is identical with our Article 534), the Royal Commissioners say, that it "seems to be the existing law, as laid down in Wells v. Abrahams, and Osborn v. Gillett," (1), there are cases in which the law does not appear to have been so laid down, but in which it has been held that a person who suffered from a felony could not maintain his civil action against the felon, before dischargiug himself of his duty to the public, by prosecuting the felon for the public wrong, and that, when, in a civil suit, the facts amounted to felony, the case must be stopped or be suspended, in order that public justice might be first vindicated by the prosecution of the offender; and, especially so, in cases where a felony was disclosed on the face of the plaintiff's declaration. (2) The policy of the law" said Lord Ellenborough, C. J., " requires that before the party injured by any felonious act can seek civil redress for it, the matter should be heard and disposed of before the proper criminal tribunal, in order that the justice of the country may be first satisfied in respect of the public offence.” (3) .. In the case of Wells v. Abrahams which was tried at the Liverpool Spring Assizes, 1872, before Lush, J., the action was one of trespass and trover, to which the defendant pleaded not guilty and not possesssd; and the proof shewed that in the course of negociations for a loan from the defendant, upon security of some jewellery, the plaintiff's wife took, to the defendant's place of business, a packet containing, (among other jewellery), a gold brooch, valued at £150, and left it with the defendant; that, the parties not having come to terms the defendant, afterwards, returned the packet to the plaintiff's wife, who, on opening it a few days afterwards, discovered that the brooch was not in it; upon which she wrote to the defendant charging him with having abstracted the brooch. The defendant, who was examined as a witness on his own behalf, denied having abstracted the brooch; and both he and his son swore that it was in the packet when it was returned to the plaintiff's wife. The jury rendered a verdict in favor of the plaintiff for £150; and the defendant, moved for a new trial, on the ground that, if the evidence established anything against him, it was a larceny, for which he had not been prosecuted. The English Court of Queen's Bench (Cockburn, C. J., Blackburn, J. Lush, J., and Quain, J.,) rejected the motion; and the opinion expressed was, that, although it had been long established as the law of England that where an injury amounted to an infringement of the civil rights of an individual and at the same time to a felony, the redress by civil action was suspended until the party inflicting the injury was prosecuted the question of enforcing this rule was a difficult one dependent upon the facts of a particular case; that a judge at nisi prius could only try the record sent down to him; that if matter of this sort was not pleaded, (and there was nothing of the sort pleaded in this case), he could neither nonsuit the plaintiff nor direct a verdict for the defendant; that moreover, a defendant could not set up his own felony as a defence: (4) and, that, therefore, unless the plaintiff alleged the felony, or the Court itself interposed to postpone the trial, as it might, there seemed to be no way in which such a matter could be made available as a defence. Article 534 now makes it certain that no such defence can be made available. 535. Distinction between felony and misdemeanor abolished.— After the commencement of this Act the distinction between felony and misdemeanor shall be abolished, and proceedings in respect of all (1) Wells v. Abrahams, L. R., 7 Q. B., 554 ; Osborn v. Gillett, LR, 8 Ex. 88. (2) Bulloek v. Dodds, 2 B. & Ald. 258; Wel'ock v. Constantine, 2 H. & C. 146; Gimson v. Woodfull, 2 C. & P. 41; Ashby v. White, 1. Sm. L. C., 6 Ed. 255, 267. Pease v. McAloon, 1 Kerr, 111, Prosser v Rowe, 2 C. & P. 421; Walsh v. Nattrass, 19 U. C. C. P. 453; Williams v. Robinson, 20 U. C. C. P. 255; Livingstone v. Massey, 23 U. C. Q. B. 155; White v. Spettigue 13 M. & W. 603. (3) Crosby v. Leng, 12 East, 413. indictable offences (except so far as they are herein varied) shall be conducted in the same manner. With reference to this subject, the English Commissioners have the following remarks. "The distinction between felony and misdemeanor was, in early times, nearly, though not absolutely, identical with the distinction between crimes punishable with death and crimes not so punishable. For a long time past, this has ceased to be the case. Most felonies are no longer punishable with death; and many misdemeanors are now punishable more severely than many felonies. The great changes which have taken place in our criminal law have made the distinction nearly if not altogether unmeaning. It is impossible to say on what principle embezzlement should be a felony, and the fraudulent appropriation of money by an agent, or the obtaining of goods by false pretences a misdemeanor: why bigamy should be a felony, and perjury a misdemeanor; why child stealing should be a felony, and abduction a misdemeanor. The result of this arbritrary classification is that the right to be bailed, the liability to be arrested without warrant, and (to a certain extent) the right of the Court to order the payment of costs of prosecutions, vary in a manner equally arbitrary and unreasonable. Moreover, the old distinction still regulates the question whether a person accused of an offence should be entitled or not to be bailed as of right, (1) and should be liable or not to summary arrest; (2) and it also regulates the mode of trial, including the right of peremptory challenge. The jury in a case of felony, however trifling it may be must be kept together till they give their verdict; in cases of misdemeanor, however serious, they may be allowed to separate. As regards the right of challenging jurors we propose that the number of challenges to be allowed shall be proportioned to the possible severity of the punishment which might follow on conviction. (3). We have also provided for the jury being allowed to separate during the trial of all but capital cases." (4) 536. Construction of Acts.-Every Act shall be hereafter read and construed as if any offence for which the offender may be prosecuted by indictment (howsoever such offence may be therein described or referred to), were described or referred to as an "indictable offence"; and as if any offence punishable on summary conviction were described or referred to as an offence"; and all provisions of this Act relating to "indictable offences" or "offences" (as the case may be) shall apply to every such offence. (1) See, as to bail, Articles 601-604, post. (2) As to arrest without warrant, see Article 552, post. |