A Treatise on Criminal Law as Applicable to the Dominion of Canada

at a Court of Oyer and Terminer, it seems the indictment may be removed into the Queen's Bench, and sent down to trial on a nisi prius record, with a view to applying for a new trial, in the event of an adverse verdict. (a) It seems, also, the indictment, if tried at the Sessions, or at a Court of Oyer and Terminer, might be removed into the Queen's Bench after verdict, but before judgment; and that the proper course, at the trial, would be to apply to the Judge to stay the giving of judgment until the indictment could be removed. (b)

When the record is on the civil side of the Court, all the incidents of a civil cause attach to it. (c) Thus, when the indictment has been preferred in the Queen's Bench, or has been removed into that Court by certiorari, and is sent down to be tried at nisi prius, as all the incidents of a trial at nisi prius attach to it, a new trial may be granted after conviction. (d)

It would seem that the foregoing remarks as to new trial, when the record is tried on the nisi prius side of the Court, can only hold, if at all, when the charge is of misdemeanor. When the charge is of felony, no new trial can be granted, though the indictment has been removed by certiorari, and sent down to trial at the assizes, on a nisi prius record. (e)

Many cases were decided, under the 20 Vic., c. 61, while it was in force. It only authorized a new trial on any point of law, or question of fact, raised at the trial (f) It was, at least, extremely doubtful whether affidavits

(a) Reg. v. Lafferty, 9 U. C. Q. B. 306.

(b) Reg. v. Smith, 10 U. C. Q. B. 99. See also Reg. v. Gzowski, 14 U. C. Q. B. 591.

(d) S. C. 16 L. C. R. 494-5, per Meredith, J. See also Arch. Cr. Pldg. 178. (e) Reg. v. Bertrand, L. R. 1 P. C. App. 520, overruling, Reg. v. Scaife, 17 Q. B. 238.

(f) See Gray v. Reg., 1 E. & A. Rep. 501; Reg. v. Crozier, 17 U. C. Q. B. 275; Reg. v. Oxentine, 17 U. C. Q. B. 295; Reg. v. Hambly, 16 Ú. C. Q. B. 617; Reg. v. Chubbs, 14 U. C. C. P. 32; Reg. v. Finkle, 15 U. C. C. P. 453.

could be received on an application for a new trial, under the 20 Vic., c. 61. (a)

Defendant was convicted, at a Recorder's Court, of obstructing a highway, on contradictory evidence, the result of the verdict being to shew that he and several others, whose houses and enclosures had been standing for sixty years, were encroaching upon the street. A new trial having been refused; on appeal, the indictment and evidence only was returned to this Court, with a copy of the rule nisi. The Court, under these circumstances, considering the importance of the case, and that the grounds of the judgment below, and the charge and direction of the Recorder to the jury, were not given to them, directed a new trial, contrary to the usual rule, which was affirmed, that such appeals will not be granted on questions of evidence. (b)

A Court of Quarter Sessions, in virtue of its own original jurisdiction at common law, has no power to grant a new trial, on an appeal from a Justice's conviction. (c)

Where, after conviction for a capital felony, the proceedings were discovered to have been illegal, there having been no associate Judge sitting in Court during the trial, on motion, on behalf of the Crown, (the prisoner not moving in any way) the indictment and conviction with the prisoner were brought up on certiorari and Habeas Corpus, and an order made, setting aside all proceedings, and remanding the prisoner to custody, with a view to a new trial. (d)

It was no ground for a new trial that several witnesses

(a) See Reg. v. Chubbs, 14 U. C. C. P. 36, per A. Wilson, J.; Reg. v. Beckwith, 8 U. C. C. P. 274; Reg. v. Crozier, 17 U. C. Q. B. 275; Reg. v. Oxentine, 17 U. C. Q. B. 295; Reg. v. Fitzgerald, 20 U. C. Q. B. 546; Reg. v. Hamilton, 16 U. C. C. P. 340; Reg. v. McIlroy, 15 U. C. C. P. 116.

(b) Reg. v. M'Lean, 22 U. C. Q. B. 443.

(d) Reg. v. Sullivan, 15 U. C. Q. B. 198.

were examined for the Crown, whose names were not on the back of the indictment. (a)

In the case of felony or treason, if a conviction takes place against the weight of evidence, the Judge passes sentence, and respites execution till application can be made to the mercy of the Crown. (b)

It would seem that is the proper course to adopt now in Canada, in cases where, formerly, a new trial might be had by Statute. (c)

The Court of Queen's Bench, in Lower Canada, sitting in appeal and error, as a Court of Error, in a criminal case, under Con. Stats. L. C., c. 77, s. 56, cannot exercise an appellate jurisdiction, but is confined, as a Court of Error, to errors appearing on the face of the record. (d)

In Ontario, appeals to the Court of Error and Appeal were, in criminal cases, confined to such as arose under the Con. Stats. U. C., c. 113. respecting new trials. But such right of appeal is now abolished.

It is the inherent prerogative right, and, in all proper cases, the duty of the Queen in Council, to exercise an appellate jurisdiction in all cases, criminal as well as civil, arising in the colonies, from which an appeal lies, and where, either by the terms of a Charter or Statute, the power of the Crown has not been parted with. This right of appeal should be exercised with a view, not only to ensure, as far as may be, the due administration of justice in an individual case, but also to preserve, generally, the due course of procedure. The exercise of this branch of the prerogative, in criminal cases, is to be cautiously admitted, and is to be regulated by a consider

(a) Reg. v. M'Mahon, 26 U. C. Q. B. 195.

(b) Yearke and Bingleman, 28 U. C. Q. B. 557, per Richards, C. J.

(c) See Reg. v. Bertrand, L. R. 1 P. C. App. 520-536; Reg. v. Murphy, L. R. 2 P. C. App. 552, per Sir Wm. Erle; Reg. v. Kennedy, 2 Thomson, 216, per Bliss, J.

(d) Duval dit Barbinas v. Reg., 14 L. C. R. 52.

Leave to ap

ation of circumstances and consequences, peal will only be granted under special circumstances, such as when a case raises questions of great and general importance in the administration of justice, or where the due and orderly administration of the law has been interrupted, or diverted into a new course, which might create a precedent for the future; and also when there is no other means of preventing these consequences, then it will be proper for the Judicial Committee to advise the allowance of such appeal. (a)

It is doubtful whether an appeal lies to the Queen in Council, against a judgment of the Court of Queen's Bench in Quebec, quashing a writ of error against an order of the Court of Queen's Bench, on the Crown side, fining and ordering an attachment against a counsel, for an alleged contempt of Court. It would seem, however, that, where a fine is imposed, the remedy is to petition. the Crown for a reference to the Judicial Committee, under the 3 & 4 Wm. 4, c. 41, s. 4. (b)

Special leave to appeal to the Privy Council was granted to the Attorney-General of New South Wales, from an order of the Supreme Court in that colony, whereby a verdict of guilty of murder, obtained by the Crown, was set aside, and a venire de novo for a re-trial ordered to issue. The leave was granted on the same conditions as in Reg. v. Bertrand, and the proceedings in the colony were stayed, pending the appeal. (c)

Leave to appeal has been given from an order of the Supreme Court of Civil Justice of British Guiana, committing the publisher of a local journal to prison for six months, for an alleged contempt of Court, in publishing,

(a) Reg. v. Bertrand, L. R. 1 P. C. App. 520. See also Falkland Islands Co. v. Reg., 10 U. C. L. J. 167; 1 Moore's P. C. Cases, N. S. 299. (b) Re Ramsay. L. R.3 P. C. Apr. 427.

in such journal, comments on the administration of justice by that Court, with liberty, to the Judges of the Supreme Court, to object to the competency of such appeal at the hearing. (a)

Special leave to appeal will be granted where the question raised is one of public interest, involving the constitutional rights of a Colonial Legislative Assembly. (b)

Permission was given to appeal, in formá pauperis, in a case in which the appellant was not heard in the Court below, and was denied leave to appeal to Her Majesty in Council, the decision being, in fact, ex parte. (c)

Leave to appeal from an order of the Supreme Court of Nova Scotia, suspending an attorney and barrister from practising in that Court, has been granted, though, under the circumstances, it was incumbent on the appellant to apply to Her Majesty, in the first instance, to admit the appeal. On a suggestion of the injury and delay which an application to Her Majesty would create, the appeal was allowed by the Privy Council. (d)

Special leave to appeal was granted, under the circumstances shewn in Reg. v. Murphy. (e)

Special leave to appeal from a conviction of a Colonial Court for a misdemeanor having been given, subject to the question of the jurisdiction of Her Majesty to admit such an appeal, and it appearing, at the opening of the appeal, that, since such qualified leave had been granted, the prisoner had obtained a free pardon, and been discharged from prison, the Judicial Committee declined. to enter upon the merits of the case, or to pronounce an

(a) Re M'Dermott, L. R. 1 P. C. App. 260.

(b) The Speaker of the Legislative Assembly of Victoria v. Glass, L. R. 3 P. C. App. 560.

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