2. Every commission, proclamation, warrant or other document relating to criminal procedure, in which offences which are indictable offences or offences (as the case may be) as defined by this Act are described or referred to by any names whatsoever, shall be hereafter read and construed as if such offences were therein described and referred to as indictable offences or offences (as the case may be).

537, Construction of reference to certain Acts.-In any Act in which reference is made to The Speedy Trials Act the same shall be construed, unless the context requires otherwise, as if such reference were to Part LIV, of this Act; any Act referring to The Summary Trials Act shall be construed, unless the context forbids it, as if such reference were to Part LV, of this Act; and every Act referring to The Summary Convictions Act shall be construed, unless the context forbids it, as if such reference were to Part LVIII, of this Act.

PART XLII.

JURISDICTION.

538. Superior Court.-Every Superior Court of Criminal Jurisdiction and every judge of such court sitting as a court for the trial of criminal causes, and every Court of Oyer and Terminer and General Gaol Delivery has power to try any indictable offence.

"The expression Superior Court of Criminal Jurisdiction' means and includes the following Courts:

(i.) In the province of Ontario, the three divisions of the High Court of Justice;

(ii.) In the province of Quebec, the Court of Queen's Bench.

(iii.) In the provinces of Nova-Scotia, New Brunswick and British Columbia, and in the North-West Territories, the Supreme Court;

(iv.) In the province of Prince-Edward Island, the Supreme Court of Judicature;

(v.) In the province of Manitoba, the Court of Queen's Bench (Crown side).' (Art. 3 y.)

539. Other Courts.-Every Court of General or Quarter Sessions of the Peace, when presided over by a Superior Court judge, or a County or District Court judge, or, in the cities of Montreal and Quebec, by a recorder or judge of the Sessions of the Peace; and in the province of New Brunswick every County Court judge has power to try any indictable offence except as hereinafter provided.

540. Cases within the exclusive jurisdiction of Superior Courts of Criminal Jurisdiction-No such court as mentioned in the next

preceding section has power to try any offence under the following sections, that is to say:

PART IV.-Sections sixty-five, TREASON; sixty-seven, ACCESSORIES AFTER THE FACT TO TREASON; sixty-eight, sixty-nine and seventy, TREASONABLE OFFENCES; seventy-one, ASSAULT ON THE QUEEN; seventy-two, INCITING TO MUTINY; seventy-seven, UNLAWFULLY OBTAINING AND COMMUNICATING OFFICIAL INFORMATION; seventyeight, COMMUNICATING INFORMATION ACQUIRED BY HOLDING OFFICE.

PART VII.-Sections one hundred and twenty, ADMINISTERING, TAKING OR PROCURING THE TAKING OF OATHS TO COMMIT CERTAIN CRIMES; one hundred and twenty-one, ADMINISTERING, TAKING OR PROCURING THE TAKING OF OTHER UNLAWFUL OATHS; one hundred and twenty-four, SEDITIOUS OFFENCES; one hundred and twenty-five, LIBELS ON FOREIGN SOVEREIGNS; one hundred and twenty-six,

SPREADING FALSE NEWS.

PART VIII.-PIRACY; any of the sections in this part.

PART IX.-Sections one hundred and thirty-one, JUDICIAL CORRUPTION; one hundred and thirty-two, CORRUPTION OF OFFICERS EMPLOYED IN PROSECUTING OFFENDERS; one hundred and thirty-three, FRAUDS UPON THE GOVERNMENT; one hundred and thirty-five, BREACH OF TRUST BY A PUBLIC OFFICER; one hundred and thirty-six, CORRUPT PRACTICES IN MUNICIPAL AFFAIRS ; one hundred and thirty-seven (a.),

SELLING AND PURCHASING OFFICES.

PART XI.-ESCAPES AND RESCUES; any of the sections in this part.

PART XVIII.-Sections two hundred and thirty-one, MURDER; two hundred and thirty-two, ATTEMPTS TO MURDER; two hundred and thirty-three, THREATS TO MURDER; two hundred and thirty-four, CONSPIRACY TO MURDER; two hundred and thirty-five, ACCESSORY

AFTER THE FACT TO MURDER.

PART XXI.-Sections two hundred and sixty-seven, RAPE ; two hundred add sixty-eight, ATTEMPT TO COMMIT RAPE.

PART XXIII.—DEFAMATORY LIBEL; any of the sections in this part.

PART XXXIX.-Section five hundred and twenty, COMBINATIONS

IN RESTRAINT OF TRADE.

PART XL.-CONSPIRING OR ATTEMPTING TO COMMIT, OR BEING ACCESSORY AFTER THE FACT to any of the foregoing offences.

See Tables of offences under Titles II, III, IV, V and VI, at pp. 77, 99, 133, 263, and 506, ante, respectively

541. Exercising the powers of two justices.-The judge of the Sessions of the Peace for the city of Quebec, the judge of the Sessions of the Peace for the city of Montreal, and every recorder, police

magistrate, district magistrate or stipendiary magistrate appointed for any territorial division, and every magistrate authorized by the law of the province in which he acts to perform acts usually required to be done by two or more justices of the peace, may do alone whatever is authorized by this Act to be done by any two or more justices of the peace, and the several forms in this Act contained may be varied so far as necessary to render them applicable to such case. R.S.C., c. 174, s. 7.

PART XLIII.

PROCEDURE IN PARTICULAR CASES.

542. Prosecutions requiring consent of Governor-General.—Proceedings for the trial and punishment of a person who is not a subject of Her Majesty, and who is charged with any offence commited within the jurisdiction of the Admiralty of England shall not be instituted in any court in Canada except with the leave of the Governor General and on his certificate that it is expedient that such proceedings should be instituted.

It is said, that, "the Criminal law of Canada extends to all offences committed by any person in Canada, or on such part of the sea adjacent to the coast of Canada as is within one marine league from ordinary low-water mark, or is deemed by International law to be within the territorial sovereignty of Her Majesty, or committed by any person on board any British ship or boat on the great lakes, or on the high seas, or in any place where the Admiralty of England has jurisdiction, and to piracy by the Law of Nations wherever committed " (1)

the

An Article to this effect was contained in the Code, when it was first introduced; but, in committee, it provoked a lengthy discussion, particularly as meaning and effect of the words, "deemed by International law to be within the territorial sovereignty of Her Majesty"; and the section was ultimately allowed to drop, although considered by Sir John Thompson to be a correct statement of the law. (2)

The above Article, 542, is based upon the Imperial Statute, 41 & 42 Vict. c. 73. (The Territorial Waters Jurisdiction Act. 1878 )

46

Section 2 of that Act declares, that, "an offence committed by a person,whether he is or is not a subject of Her Majesty, on the open sea, within the territorial waters of Her Majesty's dominions, is an offence within the jurisdiction of the Admiral, although it may be committed on board or by means of a foreign ship; and the person who commits such offence may be arrested tried and punished accordingly." And section 3 provides, that, proceedings for the trial and punishment of a person who is not a subject of Her Majesty, and who is charged with any such offence as is declared by this Act to be within the jurisdiction of the Admiral, shall not be instituted in any of the dominions of Her Majesty, out of the United Kingdom, except with the leave of the Governor of the part of the dominions in which such proceedings are proposed to be instituted, and on his certificate that it is expedient that such

(1) Burb. Dig. Cr. L. 9

(2) See Debates, in Extra Appendix, post.

proceedings should be instituted." By section 4, it is also enacted that, “ on the trial of any person who is not a subject of Her Majesty for an offence declared by this Act to be within the jurisdiction of the Admiral, it shall not be necessary to aver, in any indictment on such trial, that such consent or certificate of the Governor, as is required by this Act, has been given; and the fact of the same having been given shall be presumed, unless disputed by the defendant at the trial; and the production of a document purporting to be signed by the Governor, and containing such consent and certificate shall be sufficient evidence, for all the purposes of this Act, of the consent or certificate required by this Act."

Section 7 of the same Act defines the territorial waters of Her Majesty as being "such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty's dominions, as is deemed, by International law, to be within the territorial sovereignty of Her Majesty," and declares, that, for the purposes of any offence declared by this Act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast, measured from low-water mark, shall be deemed to be open sea within the territorial waters of Her Majesty's dominions."

""

Section 18 of the Imperial statute, 52 & 53 Vict., c. 63 (The Interpretation Act, 1889), declares that, the expression "Governor shall, as respects Canada, and India, mean the Governor-General, and include any person who, for the time being, has the powers of the Governor-General."

A foreigner who commits a criminal offence against another foreigner, or against a British subject, on board a foreign ship, on the high seas, outside of the territorial waters of Her Majesty, is not triable in any part of Her Majesty's Dominions. (1) This was held even in the case of a ship which (though foreign built) carried the British flag The prisoner was one of the crew of a ship built in Holstein whence she sailed to London, England. All the officers and crew were foreigners. The registered sole owner, one R., was an alien born, though described in the register as "of London, Merchant." The ship sailed on a voyage from London, under the British flag. While on the voyage, the prisoner killed the master, on board the vessel, when several thousand miles from England, and 200 miles from land. On the trial of the prisoner for murder, these facts were proved; and no evidence was given that R., the owner of the ship, had been naturalized, or had obtained letters of denization. Under these circums tances, it was held that there was no evidence that the ship was British, and that consequently the prisoner could not be convicted for the offence, in England. (2)

Formerly Her Majesty's Courts had no jurisdiction over an offence committed by a foreigner on board of a foreign ship even if at the time of the crime being committed the ship was within the territorial waters of Her Majesty's dominions. The question came up in the case of R. v. Keyn; in which the prisoner was a foreigner in command of a foreign ship, and while passing within three miles of the shore of England, on a voyage to a foreign port his ship ran into a British ship, and sank her, whereby a passenger on board the British ship was drowned. The facts of the case were such as, apart from the question of jurisdiction amounted to manslaughter, by English law. It was held, that the offence was not committed on board the British ship, and that there was no jurisdiction in the Courts of England to try the prisoner, a foreigner passing the English coast, on the high seas, in a foreign ship, though the occurence took place within three miles of the English coast. (3)

It was the decision in Keyn's case that led to the passing of the Territorial Waters Jurisdiction Act, 1878, amending the law, as already shewn, so that a foreigner on board a foreign ship may be tried by the Courts of England or of

(1) R. v. Lewis, Dears & B. 182; 26 L. J. (M. C.) 104; R. v. De Mattos, 7 C. & P. 458; R. v. Kohn, 4 F. & F. 68; R. v. Depardo, 1 Taunt, 26; R. & R. 134.

(2) R. v. Bjornsen, L. & C. 545; 34 L. J. (M. C.) 180.
(3) R. v. Keyn, L. R. 2 Ex. D. 63; 46 L. J. (M. C.) 17.

any of Her Majesty's Dominions for an offence committed on the open sea, provided the occurence takes place within the territorial waters of Her Majesty's dominions, and subject to the consent, as to the United Kingdom, of one of Her Majesty's Principal Secretaries of State, or, in cases arising in any part of Her Majesty's dominions outside of the United Kingdom,-with the consent of the Governor of that part

The jurisdiction of the Admiralty extends over British ships not only on the high seas, but also in foreign rivers, below the bridges, where the tide ebbs and flows and where great ships go, although the municipal authorities of the foreign country may be entitled to concurrent jurisdiction. (1) So that a person whether a British subject or a foreigner who is on board a British ship on the high seas or in foreign rivers below the bridges, where the tide ebbs and flows, and where great ships go, is subject to the laws of England the same as if he were on British soil, such a ship being in law part of the territory of the United Kingdom. (2)

Thus, where a foreigner was convicted, in England, of manslaughter committed on board a British ship in the river Garonne, in France, about 35 miles from the sea, and about 300 yards from the nearest shore, within the ebb and flow of the tide, the conviction was upheld. (3)

So, also, where a person committed a larceny on board a British ship lying afloat in the open river at Rotterdam, moored to the quay in a place where large vessels usually lay, and 16 or 18 miles from the sea, between which and the ship there were no bridges, and within the ebb and flow of the tide, it was held that the larceny took place within the jurisdiction of the Admiralty, and therefore that a person who afterwards, in England, received the property so stolen could be tried at the Central Criminal Court, as the thief himself, even if he had been a foreigner, not one of the crew, might have been so tried. (4)

Upon an indictment for larceny out of a vessel lying in a river at Wampu, in China, the prosecutor gave no evidence as to the tide fiowing; but the judges held that the Admiralty had jurisdiction, it being a place where great ships go.(5)

It has been held that the liability of the defendant, when he is a foreigner, is not affected by the fact that he was, in the first instance, brought illegally and by force on board the ship, unless the offence committed by him was one committed merely for the purpose of freeing himself from such unlawful restraint. Therefore, where the defendant, a foreigner, having committed a crime in England had fled to Hamburg, and was there arrested and forced on board an English ship, and while he was kept in custody on board such ship, on the high seas, killed the officer who had arrested him, not for the purpose of escaping, but of malice prepense, it was held that even assuming such arrest and detention to be illegal, he was guilty of murder. (6)

Where, on a trial for maliciously wounding, on the high seas, it was stated by three witnesses that the vessel on board of which the offence was alleged to have been committed was a British ship of Shields, sailing under the British flag, but no proof was given of the ownership or registration of the vessel, it was held that the Court had jurisdiction, as the evidence shewed that the vessel was British, and, that, that being so, the Court would have jurisdiction, even if there had been positive proof that the vessel was not registered. (7)

By section 267 of the Merchant Shipping Act, 17 and 18 Victoria, chapter 104, (Imp.), all offences against property or person committed in or at any place either ashore or afloat out of Her Majesty's dominions, by any master, seaman, or

(1) R. v. Anderson, L. R. 1 C. C. R. 161; 38 L. J. (M. G.) 12.

(2) R. v. Lopez, R. v. Sattler, Dears & B. 525; 27 L. J. M. C. 48; R. v. Lesley, Bell, 220; 29 L. J. (M. C.) 97.

(3) R. v. Anderson, supra.

(4) R. v. Carr, 10 Q. B D. 76; 52 L. J. (M. C.) 12.

(5) R. v. Allen, 1 Mood C. C. 494.

(6) R. v. Sattler, supra,

(7) R. v. Seberg, L. R. 1 C. C. R. 264; R. v. Von Seberg, 39 L.J. (M.C) 133, S. C.