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PART XLVII.

CORPORATIONS.

635. Every corporation against which a bill of indictment is found at any court having criminal jurisdiction shall appear by attorney in the court in which such indictment is found and plead or demur thereto. R. S. C. c. 174, s. 155.

See R. v. Birmingham, Warh. Lead. Cas. 33.

636. No writ of certiorari shall be necessary to remove any such indictment into any superior court with the view of compelling the defendant to plead thereto; nor shall it be necessary to issue any writ of distringas, or other process, to compel the defendant to appear and plead to such indictment. R. S. C. c. 174, s. 156.

637. The prosecutor, when any such indictment is found against a corporation, or the clerk of the court when such indictment is founded on a presentment of the grand jury, may cause a notice thereof to be served on the mayor or chief officer of such corporation, or upon the clerk or secretary thereof, stating the nature and purport of such indictment, and that, unless such corporation appears and pleads thereto in two days after the service of such notice, a plea of not guilty will be entered thereto for the defendant by the court, and that the trial thereof will be proceeded with in like manner as if the said corporation had appeared and pleaded thereto. R. S. C. c. 174, s. 157.

638. If such corporation does not appear in the court in which the indictment has been found, and plead or demur thereto within the time specified in the said notice, the judge presiding at such court may, on proof to him by affidavit of the due service of such notice, order the clerk or proper officer of the court to enter a plea of "not guilty" on behalf of such corporation, and such plea shall have the same force and effect as if such corporation had appeared by its attorney and pleaded such plea. R. S. C. c. 174, s. 158.

639. The court may-whether such corporation appears and pleads to the indictment, or whether a plea of "not guilty" is entered by order of the court-proceed with the trial of the indictment in the absence of the defendant in the same manner as if the corporation had appeared at the trial and defended the same; and in case of conviction, may award such judgment and take such other and subsequent proceedings to enforce the same as are applicable to convictions against corporations. R. S. C. c. 174, s. 159.

PART XLVIII.

PREFERRING INDICTMENT.

JURISDICTION. (New).

640. Every court of criminal jurisdiction in Canada is, subject to the provisions of Part XLII. (s. 538), competent to try all offences wherever committed, if the accused is found or apprehended or is in custody within the jurisdiction of such court, or if he has been committed for trial to such court or ordered to be tried before such court, or before any other court the jurisdiction of which has by lawful authority been transferred to such first mentioned court under any Act for the time being in force: Provided that nothing in this Act authorizes any court in one province of Canada to try any person for any offence committed entirely in another province, except in the following

case:

2. Every proprietor, publisher, editor, or other person charged with the publication in a newspaper of any defamatory libel shall be dealt with, indicted, tried and punished in the province in which he resides, or in which such newspaper is printed. 51 V. c. 44, s. 2.

This section extends to all cases, the provision heretofore to be found in various statutes that the accused may be tried in any district where he is apprehended or in custody: see R. v. Lynch, 20 L. C. J. 187; R. v. Smith, 1 F. & F. 36; R. v. James, 7 C. & P. 558; R. v. Smythies, 1 Den. 498, and note (c) to 1 Russ. 274. S-s. 2 is given as an exception to the proviso in s-s. 1. But it is clearly not an exception to the enactment of that proviso that any offence committed entirely in one Province shall not be

triable in another Province.

See ante, under 8. 542, the Imperial statutory provisions as to the trial in the colonies of offences committed abroad or within the jurisdiction of the Admiralty.

The words "wherever committed" in s. 640 must receive a limited construction, and be read as if the words "in Canada" were added thereto: Macleod v. The Attorney. General, 17 Cox, 341, (1891), A.C. 455. Parliament cannot have intended to legislate on offences committed abroad by any one, even by foreigners, as this enactment taken

literally would infer. The English draft code was more happily worded. It said "every court competent to try offences triable in England or Ireland shall be competent to try all such offences wherever committed if the accused is found, etc. What this s. 640 means is, what was meant by the English draft, namely, that all courts otherwise competent to try an offence shall be competent to try it irrespectively of the place where it was committed, the place of trial being determined by the costs and expenses, the convenience of the court, the witnesses, and the person accused, the county where the offence was committed, being, of course, as a general rule, the best place for the purpose: 1 Stephens' Hist. 278. The Code is silent as to what are the offences committed on the high seas or abroad, on land, either wholly or partly, that can be tried in Canada: see remarks under s. 542, ante. The Imperial draft code had two special articles on the subject, but they have not been reproduced.

MODES OF PROSECUTION. (New).

641. Any one who is bound over to prosecute any person, whether committed for trial or not, may prefer a bill of indictment for the charge on which the accused has been committed, or in respect of which the prosecutor is so bound over, or for any charge founded upon the facts or evidence disclosed on the depositions taken before the justice. The accused may at any time before he is given in charge to the jury apply to the court to quash any count in the indictment on the ground that it is not founded on such facts or evidence, and the court shall quash such count if satisfied that it is not so founded. And if at any time during the trial it appears to the court that any count is not so founded, and that injustice has been or is likely to be done to the accused in consequence of such count remaining in the indictment, the court may then quash such count and discharge the jury from finding any verdict upon it.

2. The Attorney-General or any one by his direction or any one with the written consent of a judge of any court of criminal jurisdiction or of the Attorney-General, may prefer a bill of indictment for any offence before the grand jury of any court specified in such consent; and any person may prefer any bill of indictment before any court of criminal jurisdiction by order of such

court.

3. It shall not be necessary to state such consent or order in the indictment. An objection to an indictment for want of such consent or order must be taken by motion to quash the indictment before the accused person is given in charge.

4. Save as aforesaid no bill of indictment shall after the commencement of this Act be preferred in any province in Canada.

The words "Attorney-General" include the solicitorgeneral: s. 3.

This enactment extends to all offences whatever the provisions of s. 140, c. 174, R. S C., which applied only to certain specified offences. The grand jury are not now at liberty to find a bill upon their own knowledge only; and the right to go directly before them and prefer a bill against any one is taken away. No one, as a general rule, is now liable to be indicted without a preliminary inquiry being first held before a magistrate. The only exceptions are those contained in s-s. 2 of the above s. 641. Criminal informations will lie as heretofore, though there may be some difficulty to determine in what cases, owing to the silence of the Code on the subject, the distinction between felonies and misdemeanours being abolished, and the remedy by information being given in England only in cases of misdemeanours.

By s. 595, ante, if the magistrate dismisses the charge and refuses to commit or bail the person accused, he is bound, if required to do so, to take the prosecutor's recognizance to prosecute the charge: R. v. Lord Mayor, 16 Cox, 77; see Ex parte Wason, 38 L. J. Q. B. 302.

This clause 641 forms in England the Acts known as the "Vexatious Indictments Acts" 22 & 23 V. c. 17; 30 & 31 V. c. 35; 44 & 45 V. c. 60 and 48 & 49 V. c. 69, and the enactment applies there only to certain specified

offences.

The order of a judge in a court of civil jurisdiction ordering any one to be prosecuted for perjury under s. 4 of c. 154, R. S. C. (unrepealed, see, ante, p. 98) is not covered by s-s. 2 of s. 641, as it was by s. 140 of the Procedure Act.

As to jurisdiction of a state over offences committed abroad by its own subjects see cases under s. 542, ante, and Macleod v. Attorney General, 17 Cox, 341, [1891) A.C. 455. The offence committed abroad in that last case

was committed by a British subject, but that fact does not seem to have been specially alluded to, or else it was assumed that a colony has not, in such cases, like the Imperial Parliament, jurisdiction over offences committed abroad.

It is not necessary by s-s. 3 that the performance of any of the conditions mentioned in this section should be averred in the indictment or proved before the petit jury: Knowlden v. R. (in error) 5 B. & S. 532, 9 Cox, 483; Boaler v. R. 16 Cox, 488, 21 Q. B. D. 284. When the in lictment is preferred by the direction in writing of a judge of competent jurisdiction, it is for the judge to whom the application is made for such direction to decide what materials ought to be before him, and it is not necessary to summon the party accused or to bring him before the judge; the court will not interfere with the exercise of the discretion of the judge under this clause: R. v. Bray, 3 B. & S. 255, 9 Cox, 215.

The provisions of the above statute must be complied with in respect to every count of an indictment to which they are applicable, and any count in which they have not been complied with must be quashed, but the motion to quash need not necessarily be made before plea pleaded: R. v. Fuidge, L. & C. 390, 9 Cox, 430; R. v. Bradlaugh, 15 Cox, 156. So if an indictment contains one count for obtaining money by false pretenses on the 26th of September, 1873, and another count for obtaining money by false pretenses on the 29th of September, 1873, though the false pretenses charged be the same in both cases, the second count must be quashed, if the defendant appears to have been committed only for the offence of the 26th September, and if the second offence is not disclosed by the depositions.

Where three persons were committed for conspiracy, and afterwards the Solicitor-General, acting under this clause, directed a bill to be preferred against a fourth person, who had not been committed, and all four were indicted together

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