R. v. Smith, 38 U. C. Q. B. 218; see R. v. Mellor, Dears. & B. 468, cited ante, and Morin v. R., 18 S. C. R. 407, and cases there cited.

A police magistrate cannot reserve a case for the opinion of a superior court, under C. S. U. C. c. 112, as he is not within the terms of that Act: R. v. Richardson, 80. R. 651; see ss. 742 and 900.

Challenge to the array is a question of law arising on the trial which may be reserved. If Crown demurs to the challenge, and judgment on demurrer is given, it becomes a matter of record and cannot be reserved: R. v. Plante, 7 Man. L. R. 537.

NEW TRIAL. (New).

747. After the conviction of any person for any indictable offence the court before which the trial takes place may, either during the sitting or afterwards, give leave to the person convicted to apply to the Court of Appeal for a new trial on the ground that the verdict was against the weight of evidence. The Court of Appeal may, upon hearing such motion, direct a new trial if it thinks fit.

2. In the case of a trial before a Court of General or Quarter Sessions such leave may be given, during or at the end of the session, by the judge or other person who presided at the trial.

Under this clause a condition precedent to any appli cation for a new trial in all offences whatever is the permission of the court before which the conviction took place, and, that permission being obtained, the Court of Appeal grants or rejects the application as it thinks proper: s. 745 applies to applications for new trials. No new trial is allowed to the crown. The only ground for the application mentioned in this section is that the verdict was against the weight of evidence. The application to the court before which the trial took place may be made during the sitting of the court or afterwards. The rule heretofore has been that the defendant or defendants must be present in court when the motion is made for a new trial, unless some special ground he laid for dispensing with the rule: R. v. Caudwell, 2 Den., note a, 372, 1 Chit. 658; R. v. Parkinson, 2 Den. 459; R. v. Fraser, 14 L. C. J. 245; R. v. Hollingberry, 4 B. & C. 329.

See R. v. Duncan, 7 Q. B. D. 198, Warb. Lead. Cas. 260, and cases there cited as to practice in England on new trials.

NEW TRIAL BY ORDER OF THE MINISTER OF JUSTICE (New).

748. If upon any application for the mercy of the Crown on behalf of any person convicted of an indictable offence, the Minister of Justice entertains a doubt whether such person ought to have been convicted, he may, instead of advising Her Majesty to remit or commute the sentence, after such inquiry as he thinks proper, by an order in writing direct a new trial at such time and before such court as he may think proper.

This is new. It virtually gives an appeal from the courts to the Minister of Justice. The sentence, if for imprisonment, is not suspended by the order of the Minister of Justice under this clause, nor is provision made to admit the person convicted to bail.

INTERMEDIATE EFFECTS OF APPEAL. (New).

749. The sentence of a court shall not be suspended by reason of any appeal, unless the court expressly so directs, except where the sentence is that the accused suffer death, or whipping. The production of a certificate from the officer of the court that a question has been reserved, or that leave has been given to apply for a new trial, or of a certificate from the Attorney-General that he has given leave to move the Court of Appeal, or of a certificate from the Minister of Justice that he has directed a new trial, shall be a sufficient warrant to suspend the execution of any sentence of death or whipping.

2. In all cases it shall be in the discretion of the Court of Appeal in directing a new trial to order the accused to be admitted to bail.

Sub-section 2, it seems, applies as well to new trials ordered under s. 746 as to new trials under s. 747.

APPEAL TO SUPREME COURT.

750. Any person convicted of any indictable offence, whose conviction has been affirmed on an appeal taken under section seven hundred and forty-two, may appeal to the Supreme Court of Canada against the affirmance of such conviction; and the Supreme Court of Canada shall make such rule or order thereon, either in affirmance of the conviction or for granting a new trial, or otherwise, or for granting or refusing such application, as the justice of the case requires, and shall make all other necessary rules and orders for carrying such rule or order into effect: Provided that no such appeal can be taken if the Court of Appeal is unanimous in affirming the conviction, nor unless notice of appeal in writing has been served on the Attorney-General within fifteen days after such affirmance or such further time as may be allowed by the Supreme Court of Canada or a judge thereof.

2. Unless such appeal is brought on for hearing by the appellant at the session of the Supreme Court during which such affirmance takes place, or the

plead, may forthwith be given and served, and a plea to such information or indictment may be enforced, or judgment in default may be entered in the same manner as might have been done formerly in cases in which the defendant had appeared to such information or indictment by attorney in a previous term; but the court, or any judge thereof, upon sufficient cause shown for that purpose, may allow further time for such defendant to plead or demur to such information or indictment. R. S. C. c. 174, s. 274.

759. If any prosecution for an indictable offence, instituted by the Attorney-General for Ontario in the said court, is not brought to trial within twelve months next after the plea of not guilty has been pleaded thereto, the court in which such prosecution is depending, upon application made on behalf of any defendant in such prosecution of which application twenty days' previous notice shall be given to such Attorney-General, may make an order authorizing such defendant to bring on the trial of such prosecution; and thereupon such defendant may bring on such trial accordingly unless a nolle prosequi is entered to such prosecution. R. S. C. c. 174, s. 275.

The necessity of these last three sections is not clear. They applied heretofore only to misdemeanours.

SPECIAL PROVISIONS FOR NOVA SCOTIA.

760. In the province of Nova Scotia a calendar of the criminal cases shall be sent by the clerk of the Crown to the grand jury in each term, together with the depositions taken in each case and the names of the different witnesses, and the indictments shall not be made out, except in Halifax, until the grand jury so directs. R. S. C. c. 174, s. 276.

761. A judge of the Supreme Court of Nova Scotia may sentence convicted criminals on any day of the sittings at Halifax, as well as in term time. R. S. C. c. 174, s. 277.

PART LIV.

SPEEDY TRIALS OF INDICTABLE OFFENCES.

762. The provisions of this part do not apply to the North-West Territories or the district of Keewatin. 52 V. c. 47, s. 3.

763. 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 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. 52 V. c. 47, s. 2.

764. The judge sitting on any trial under this part, 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. 52 V. c. 47, 8. 4.

765. Every person committed to gaol for trial on a charge of being guilty of any of the offences which are mentioned in section five hundred and

thirty-nine 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. 52 V. c. 47, s. 5.

766. Every sheriff shall, within twenty-four hours after any 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. 52 V. c. 47, s. 6.

767. 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 arraigned 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 to this Act; such plea shall be entered on the record, and the judge shall pass the sentence of the law on such prisoner, which shall have the same force and effect as if passed by any court having jurisdiction to try the offence in the ordinary way. 52 V. c. 47, s. 6.

MM.-(Section 767).

FORM OF RECORD WHEN THE PRISONER PLEADS NOT

Canada,

GUILTY.

Province of

County of

Be it remembered that A. B. being a prisoner in the gaol of the said county, committed for trial on a charge of having

(one cow, the property of C. D., or as the case may be, stating briefly the offence) and having been brought before me (describe the judge) on the in the year and asked by me if he consented to be tried before me without

day of