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TITLE VII.

PROCEDURE.

PART XLI.

GENERAL PROVISIONS.

POWER TO MAKE RULES.

533. 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 Parliament at the session next after the making thereof, and shall also be published in the Canada Gazette. 52 V. c. 40.

CIVIL REMEDY-EFFECT OF CRIMINAL OFFENCE ON.

534. 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.

"This seems to be the existing law."-Imp. Comm. Rep.

See Wells v. Abrahams, L. R. 7 Q. B. 554, Warb. Lead. Cas. 261; Osborn v. Gillett, L. R. 8 Ex. 88; S. v. S. 16 Cox, 566; Schohl v. Kay, 5 Allen (N.B.), 244; Livingstone v. Massey, 23 U. C. Q. B. 156; Appleby v. Franklin, 17 Q. B.D. 93; Taylor v. McCullough, 8 O. R. 309; Tremblay v. Bernier, 21 S. C. R. 309.

ABOLITION OF DISTINCTION BETWEEN FELONY AND MISDEMEANOUR. (New).

535. After the commencement of this Act the distinction between felony and misdemeanour shall be abolished, and proceedings in respect of all indictable offences (except so far as they are herein varied) shall be conducted in the same manner.

"The distinction between felony and misdemeanour 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 misdemeanours are now punished 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 pretenses, a misdemeanour; why bigamy should be a felony, and perjury a misdemeanour; why child-stealing should be a felony, and abduction a misdemeanour. The result of this arbitrary 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 the costs of prosecutions, vary in a manner equally arbitrary and unreasonable."-Imp. Comm. Rep.

CONSTRUCTION OF ACTS. (New).

536. 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.

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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).

CONSTRUCTION OF CERTAIN OTHER ACTS. (New).

537. 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.

SUPERIOR COURTS.

538. 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. R. S. C. c. 174, s. 3.

"Superior Courts" defined, s. 3.

SESSIONS OF THE PEACE AND OTHER COURTS.

539. 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. R. S. C. c. 174, s. 4 (Amended).

See remarks under next section.

OFFENCES IN THE EXCLUSIVE JURISDICTION OF SUPERIOR COURTS.

(Amended)

540. 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; seventyseven, 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 and 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.

Are not triable at quarter sessions, the offences under ss. 65, 67, 68, 69, 70, 71, 72, 77, 78, 120, 121, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 135, 136, 137a, 159 to 169, both inclusive, 231, 232, 233, 234, 235, 267, 268, 285, to 302, both inclusive, 520, and conspiracies, attempts or being accessory after the fact to any of the foregoing offences. The principal change in this section, coupled with s. 539, are the additions to the courts of quarter sessions' jurisdiction of manslaughter, perjury, subornation of perjury, forgery, counterfeiting coin, offences under ss. 247, 248, and of blasphemous libel.

The terms of s. 539 are so wide that s. 116 of c. 8, R* S. C., stands virtually repealed, and that consequently bribery at elections is now triable at quarter sessions. Every offence whatever is now so triable, except those specially mentioned in s. 540. This may have been an oversight of the law-giver, but in the law-giver alone lies the right to remedy its consequences: Lane v. Bennett, 1 M. & W. 70.

EXERCISING POWERS OF TWO JUSTICES.

541. 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.

The word recorder is new.

PART XLIII.

PROCEDURE IN PARTICULAR CASES.

OFFENCES WITHIN THE JURISDICTION OF THE ADMIRALTY. (New). 542. Proceedings for the trial and punishment of a person who is not a subject of Her Majesty, and who is charged with any offence committed 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.

See s. 560 as to warrant of arrest.

The courts of Canada have no jurisdiction over a foreigner who commits an offence on a foreign ship on the high seas outside of one marine league from the coast: R. v. Serva, 1 Den. 104, R. v. Lewis, Dears. & B. 182; R. v. Keyn, 13 Cox, 403; R. v. Kinsman, James (N.S.), 62. But if such an offence is committed within one marine league of the coast then they have jurisdiction in virtue of the Territorial Waters Jurisdiction Act of 1878, 41 & 42 V. c. 78 (Imp.), by which it is enacted 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, that is within one marine league from the shore, is an offence within the jurisdiction of the admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried and punished accord

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