TITLE IX.

ACTIONS AGAINST PERSONS ADMINISTERING THE CRIMINAL LAW.

975. Time and place for action.-Every action and prosecution against any person for anything purporting to be done in pursuance of any Act of the Parliament of Canada relating to criminal law, shall, unless otherwise provided, be laid and tried in the district, county or other judicial division, where the act was committed, and not elsewhere, and shall not be commenced except within six months next after the act committed. R.S.C., c. 185, s. 1.

976. Notice of Action.-Notice in writing of such action and of the cause thereof, shall be given to the defendant one month at least before the commencement of the action. R.S.C., c. 185, s. 2.

977. Defense. In any such action the defendant may plead the general issue, and give the provisions of this title and the special matter in evidence at any trial had thereupon. R.S.C., c. 185, s. 3.

978. Tender or payment in Court.-No plaintiff shall recover in any such action if tender of sufficient amends is made before such action brought, or if a sufficient sum of money is paid into Court by or on behalf of the defendant after such action brought. R.S.C., c. 185, s. 4.

979. Costs.—If such action is commenced after the time hereby limited for bringing the same, or is brought or the venue laid in any other place than as aforesaid, a verdict shall be found or judgment shall be given for the defendant; and thereupon or if the plaintiff becomes nonsuit, or discontinues any such action after issue joined, or if upon demurrer or otherwise judgment is given against the plaintiff, the defendant shall, in the discretion of the Court, recover his full costs as between solicitor and client, and shall have the like remedy for the same as any defendant has by law in other cases ; and although a verdict or judgment is given for the plaintiff in any such action, such plaintiff shall not have costs against the defendant, unless the Judge, before whom the trial is had, certifies his approval of the action. R.S.C., c. 185, s. 5.

980. Other remedies saved.—Nothing herein shall prevent the effect of any Act in force in any province of Canada, for the protection of Justices of the Peace or other officers from vexatious actions for things purporting to be done in the performance of their duty. R.S.C., c. 185, s. 6.

TITLE X.

REPEAL, &c.

981. Statutes Repealed.-The several Acts set out and described in schedule two to this Act shall, from and after the date appointed for the coming into force of this Act, be repealed to the extent stated in the said schedule.

2. The provisions of this Act which relate to procedure shall apply to all prosecutions commenced on or after the day upon which this Act comes into force, in relation to any offence whensoever committed. The proceedings in respect of any prosecution commenced before the said date otherwise than under the Summary Convictions Act, shall, up to the time of committal for trial, be continued as if this Act had not been passed, and after committal for trial shall be subject to all the provisions of this Act relating to procedure so far as the same are applicable thereto. The proceedings in respect of any prosecutions commenced before the said day, under the Summary Convictions Act, shall be continued and carried on as if this Act had not been passed. (As amended by 56 Vic. c 32.)

982. Forms in schedule one to be valid.-The several forms in schedule one to this Act, varied to suit the case or forms to the like effect, shall be deemed good, valid and sufficient in law.

983. Application of Act to N. W. T. and Keewatin.-Not to affect H. M's forces.—The provisions of this Act extend to and are in force in the North-West Territories and the district of Keewatin except in so far as they are inconsistent with the provisions of the NorthWest Territories Act or The Keewatin Act and the amendments thereto.

2. Nothing in this Act shall affect any of the laws relating to the Government of Her Majesty's Land or Naval Forces.

3. Nothing herein contained shall affect the Acts and parts of Acts in the appendix to this Act; And in construing such parts reference may be had to the repealed portions of the Act of which respectively they form parts, as well as to any sections of this Act which have been substituted therefor, or which deal with like matters.

THE CANADA EVIDENCE ACT 1893.

[56 VICT. c. 31.]

An Act respecting Witnesses and Evidence.

[Assented to 1st April, 1893.]

H

ER Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. Short title.-This Act may be cited as The Canada Evidence Act, 1893.

2. Application.-This Act shall apply to all criminal proceedings, and to all civil proceedings and other matters whatsoever respecting which the Parliament of Canada has jurisdiction in this behalf.

WITNESSES.

3. Interest or crime, no bar.-A person shall not be incompetent to give evidence by reason of interest or crime.

4. Accused and husband and wife competent.-Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness, whether the person so charged is charged solely or jointly with any other person. Provided, however, that no husband shall be competent to disclose any communication made to him by his wife during their marriage, and no wife shall be competent to disclose any communication made to her by her husband during their marriage.

2. The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the Judge or by Counsel for the prosecution in addressing the Jury.

Will this Article render a defendant competent as a witness on his own behalf when charged with an offence punishable under a provincial statute or a municipal by-law? In other words, does subsection 27 of section 91 of the B. N. A. Act. 1867, extend so far as to vest in the Dominion Parliament exclusive legislative authority to regulate procedure, (including, of course, evidence, as a branch of procedure), in relation to all criminal offences, no matter by what authority punishable, that is, whether punishable by virtue of Dominion, Provincial, Municipal or other laws? Or, is subsection 15 of section 92 of the B. N. A. Act., (which gives provincial legislatures authority to make laws

imposing the punishment by fine, penalty, or imprisonment for the enforcement of provincial laws), to be construed as conferring on the provincial legislatures. the power to regulate the procedure in regard to offences against provincial laws? And are there, therefore, as some have contended, two sets of criminal offences,- Federal crimes and Provincial crimes. Section 91, subsection 27 of the B. N. A. Act declares that the exclusive legislative authority of the Dominion Parliament extends to all matters relating to the criminal law, except the constitution of the Courts, but including the procedure in criminal matters. This language is very broad, and certainly seems to cover procedure in all criminal matters whatsoever; and as subsection 15 of section 92 says nothing at all about procedure, it seems, that. in empowering provincial legislatures to impose a fine or penalty or imprisonment for infraction of provincial laws,-it merely confers upon the provincial legislatures a special and limited authority concurrent with the general authority which the Dominion Parliament possesses over all criminal matters and criminal procedure.

When, under the limited authority conferred upon them, provincial legislatures impose a fine or a penalty or imprisonment for a disobedience of a provincial law, they do not thereby create the criminal offence involved in such disobedience. Disobedience of a statute is a crime under the common law; it is a crime under the general criminal law of the country; and the Criminal Code itself (see Article 138, ante) expressly makes it an indictable offence to unlawfully disobey any Act of any legislature in Canada, and enacts that the offender shall be liable to one years imprisonment, unless there is some other punishment expressly provided by law. So, that, if the limited authority given to provincial legislatures by the B. N. A. Act were not in existence at all, or, if, though in existence, it were not exercised, a contravention of a provincial statute would be punishable under the general criminal law, controlled by the Dominion Parliament; and, surely, the mere fact that the provincial legislatures are granted a limited right to the extent of fixing the punishment in the case of a criminal offence which contravenes a provincial statute, - a limited right which does not override but is in aid of the general powers of the Dominion Parliament, - cannot give them the further right to regulate, in regard to such offences, the criminal procedure over which the Dominion Parliament has been given exclusive control,-in order, no doubt, to secure, in the trial of criminal offences, uniformity of procedure all over Canada.

It is not easy to reconcile the decisions in some of the cases which have arisen upon the questions involved in this subject, and which will be briefly noticed below; but there seems a good deal of reason in the contention that when the subject matter of a proceeding before a Justice or a Magistrate is in the nature of a criminal offence it should have applied to it the general law of criminal procedure, whether it is based upon an infraction of a provincial Act, or otherwise.

In Roddy's case the defendant, who was accused of selling liquor on Sunday in violation of the License Act 37 Vic. c. 32, secs. 28 & 34, (Ont.) was convicted on his own evidence, the prosecution having called him against his own protest as a witness, under the authority of 36 Vic c. 10, sec. 4 (Ont), rendering a defendant a competent and compellable witness in any matter, not being a crime; the position taken being that a violation of the license laws was not a crime.

In Appeal the question was thoroughly gone into; and Harrison, C. J., rendered the judgment of the Court quashing the conviction. He referred to sec. 91, sub-sec. 27 of the B N. A. Act, and said that as the provincial legislatures have no direct power to legislate either as to crime or criminal procedure, the question was whether the charge against the defendant was a charge of crime. He then quoted from Paley on convictions as follows: The question, what is a criminal proceeding as the subject of summary conviction depends on the manner in which the Legislature have treated the cause of complaint; and for this purpose the scope and object of the statute as well as the language of its particular enactments should be considered. It may be as a general rule

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that every proceeding before a Magistrate where he has power to convict in contradistinction to the power of making an order is a criminal proceeding, whether the Magistrate be authorized in the first instance to direct payment of a sum of money as a penalty, or at once to adjudge the defendant to be imprisoned; and it must be borne in mind that where a statute orders, enjoins or prohibits an act, every disobedience is punishable at common law by indictment. In such cases the addition of a penalty to be recovered by summary conviction can hardly prevent the proceeding from being a criminal one" (1)

After reviewing a number of decisions as to what particular offences are crimes, the learned Chief Justice concluded that the offence of selling liquor on Sunday being one of public interest and being punishable by fine or imprisonment with hard labor, it was so far of a criminal nature that the defendant ought not to have been compelled to give evidence against himself. (2)

In England the parties and the husbands or wives of the parties to an action or other civil proceeding are competent witnesses on their own behalf or for or against each other, but they are not competent as a general rule in any criminal proceedings whether triable on indictment, or summarily; (3) and the question of whether a defendant could be examined as a witness in a proceeding before a Justice or a Magistrate has been held, there, in a number of cases, to depend upon the further question whether it was a criminal proceeding in which the defendant was charged with committing an offence punishable on summary conviction. For instance where a licensed public house keeper was prosecuted under the English Liquor License Laws for unlawfully permitting persons of notoriously bad character to assemble together in his house, against the tenor of his license, it was held that he was not a competent witness, Wightman, J., being of opinion that the statute treated the offence as a crime. (4)

In a case against a physician charged with violating a law of the province of Ontario, by practising without being registered, it was held that as this was a crime the defendant could not be a witness under 36 Vic, c. 10, sec, 4. (Ont.) (5).

In another Ontario case in which the defendant was charged with the violation of a Municipal by-law, and as the offence was a criminal offence he was held incompetent to give evidence. (6)

In a recent case, upon the trial, before a Police Magistrate, of an offence against a City by-law in erecting a wooden building within the fire limits, the defendant was compelled to give evidence under sec. 9, R.S.C. c. 61, which enacts that on the trial before any Justice of the Peace, Mayor, or Police Magistrate of any matter or questi not being a crime, the party opposing or defending shall be competent and compellable to give evidence; and, the defendant being convicted, it was held by the Common Pleas Division in quashing the conviction that an offence against the by-law in question was a criminal offence, and that therefore the defendant was not a competent nor compellable witness, (7)

In a still more recent case where a defendant was convicted by the Police Magistrate of Toronto, for selling liquor without a license (contrary to sec. 70 of

(1) Paley Sum. Conv., 5 Ed. 112, 113; 6 Ed. p. 118; See R. v. J. J Gloucestershire, L. R. 4 Q. B. 225; 38 L J. (M C.) 73.

(2) R. v. Roddy, 41 U. C. Q. B. 291.

(3) 14 and 15 Vict., c. 99, secs 2 and 3, (Imp.); 16 and 17 Vict., c. 83, (Imp.). (4) Parker v. Green, 9 Cox, C. C., 169; 2 B. & S. 299; 31 L. J. (M. C ) 133. See Catell v. Ireson, E. B. & E. 91; 27 L. J. (M. C.) 167; Atty. Gen. v. Radloff, 10 Exch. 84 23 L J., Exch., 240, S. C.; Atty. Gen. v. Sillem, 32 L. J., Exch., 92, 101; Mellor v. Denham, 5 Q. B. D. 467; R. v. Whitchurch, 7 Q. B. D. 534, Atty. Gen. v. Bradlaugh. 14 Q. B. D. 669,

(5) R. v. Sparham, 8 Ont. Rep. 570.

(6) R. v. McNicholl, 11 Ont. Rep. 659.

(7) R. v. Hart, 20 Ont. Rep. 611. See R, v. Wason, 17 App. Rep. (Ont.) 221; Dunning 14 Ont. Rep. 52.

R. v.