Adjudication.

See SUMMARY CONVICTION.

Admissibility.

See EVIDENCE.

Alibi.

INDEX.

Alibi-Question of identity-Onus of proof-Preponderance of testimony.]

It is misdirection entitling the accused to a new trial for the trial judge to charge the jury that the onus is upon the accused to prove an alibi set up in defence by a preponderance of testimony. THE KING V. MYSHRALL, (N.B.) 474 Alibi-Reasonable doubt-Onus of proof.

Alien labour.

Encouraging importation of foreigners under contract of employment Advertising for workmen-"Promise of employment."]

(1) The usual manufacturers' advertisement of "Mechanics Wanted" is only an invitation to apply for employment and not a "promise of employment," the advertisement of which is prohibited by the Alien Labour Statutes.

(2) The insertion of such an advertisement by a Canadian firm in a foreign newspaper is not illegal, although foreigners are led thereby to come to Canada to make application to the advertisers for employment and are employed by them.

Amendment.

476

DOWNIE V. VANCOUVER ENGINEERING WORKS, (Ont.) 66

See APPEAL; CERTIORARI; HABEAS CORPUS; SUMMARY CONVICTION.

Appeal.

From summary conviction-Certiorari proceedings a waiver.] The taking of a writ of certiorari is a waiver on the part of the petitioner of his right of appeal.

DENAULT V. ROBIDA, (Que.) 501

Appeal from summary conviction-Form of recognizance-Condition to "personally" appear.]

(1) The recognizance upon an appeal from a summary conviction must be conditioned that the defendant should "personally appear,"

524

Appeal-Continued.

and the omission of the word "personally" makes the recognizance defective.

(2) The giving of proper security upon the appeal is a statutory condition precedent to the carrying on of a successful appeal, but notwithstanding a defect in the security the Court has jurisdiction to award costs against the appellant on giving effect to the objection and dismissing the appeal upon that ground.

(3) Notwithstanding a general order or rule of court requiring the grounds to be stated in an order nisi, the Court may on the return of the order grant leave to add another ground.

EX PARTE SPRAGUE, (N.B.) 109 Appeal from summary conviction-Quashing conviction defective on its face.]

A County Court Judge, who has allowed an appeal from a summary conviction under a statutory provision similar to Code sec. 883, and has quashed the conviction as invalid on its face without hearing further evidence and trying the case de novo, cannot be compelled by mandamus to re-open the appeal for the purpose of hearing such evidence.

STRANG V. GELLATLY, (B.C.) 17

case Jurisdiction-Full

Court of Criminal Appeal-Reserved
Court of seven Judges-Hearing before four Judges only.]
Four Judges, constituting a majority of the Supreme Court of
Nova Scotia, have authority to sit as the Supreme Court of that
Province in banc to hear a reserved case, the full membership of
the Court being seven.

GEORGE V. THE KING, (Can.) 401

Leave to appeal-Notice of motion-Stating grounds of application-Time of service.]

Upon an application made, pursuant to Code sec. 744, for leave to appeal after the refusal of a reserved case, ample notice of the application should be given to the Attorney-General, and the notice of motion should set forth the grounds relied upon.

THE KING V. LAI PING, (B.C.) 467 Leave to appeal-Refusing leave unless substantial wrong occasioned at trial.]

Leave to appeal will not be granted by an appellate court under Code sec. 744 on the ground of the admission of irrelevant evidence, if in the opinion of the Court the reception of such evidence did not occasion any substantial wrong or miscarriage on the

trial.

THE KING V. CALLAGHAN, (Ont.) 143

Appeal-Continued.

Reserved case-Refusal to grant-Time of application-Leave to appeal only where application made during the trial.]

(1) The trial judge may if he sees fit grant a reserved case during or after the trial, either upon application therefor or of his own motion, but the Court of Appeal can grant leave to appeal only in the case of an application made during the trial being refused. (2) The words "party applying" in the first paragraph of Code sec. 744 refer to the application authorized by Code sec. 743, subsec. (3) to be made during the trial either orally or in writing by the prosecutor or the accused.

THE KING V. ToTo, (N.W.T.) 410

Refusal of reserved case-Time of application-Leave to appeal -Crim. Code, secs. 742-744.

And see STATED CASE.

Assault.

1

Assault causing bodily harm-Conviction for common assault after preliminary enquiry.]

(1) A magistrate holding a preliminary enquiry for an indictable offence may not proceed to summarily convict on the evidence given therein for both the accused and the prosecutor for a lesser offence included in the offence charged, although such lesser offence, if originally charged, would have been within his jurisdiction for trial.

(2) A conviction made by a magistrate after proceeding upon a preliminary enquiry under Part XLV. is invalid, and will be quashed, although neither the accused nor his counsel made objection before the magistrate.

413

EX PARTE DUFFY, (N.B.) 277

Assault-Summary trial-Hard labour upon imprisonment.] Where the sentence imposed upon a summary trial by consent before a city stipendiary magistrate for common assault was, in the first instance, three months' imprisonment without mention of hard labour, and the minute of adjudication did not include hard labour, a formal conviction, including hard labour, and a commitment thereon in similar terms are invalid and the accused will be discharged on habeas corpus.

EX PARTE CARMICHAEL, (N.S.) 19

School teacher and pupil-Personal chastisement-Unlawful and excessive corporal punishment.]

A school teacher who inflicts unreasonably severe chastisement upon a pupil is criminally responsible, under Code secs. 55 and 58,

Assault-Continued.

for the excess of force used, although the punishment occasioned no permanent injury and was inflicted without malice.

Bawdy house.

THE KING V. GAUL, (N.S.) 178

Inducing to come from abroad to become inmate of brothel— Extra-territorial offence.]

Upon a charge of procuring a girl to come to Canada from abroad with intent that she may become an inmate of a brothel in Canada, the acts of inducement must be shewn to have been committed in Canada to give jurisdiction to a Canadian court, unless the accused is a British subject. RE GERTIE JOHNSON, (B.C.) 243

Binder twine.

Offences relating to the labelling and sale of.

Canada Evidence Act.

Onus of proof upon accused-Failure of prisoner to give an account Comment upon in charging the jury.]

A direction to the jury upon a criminal trial that the accused has failed to account for a particular occurrence when the onus is upon him to do so, is not a comment on the failure of the accused to testify within sec. 4 of the Canada Evidence Act, nor a ground for a new trial.

Canada Temperance Act.

513

THE KING V. Aно, (B.C.) 453

Third offence-Conviction-Omission to recite that information for first offence preceded third offence.]

(1) A conviction for a third offence under the Canada Temperance Act is valid if it follows the statutory form without reciting that such third offence was committed after information laid for the first offence, if such was in fact the case.

(2) The fact that the information for the first offence had preceded the commission of the alleged third offence as required by statute, may be shewn by affidavit filed in answer to a certiorari application.

THE KING V. SWAN, (N.S.) 86

Amendment of 1904-Penalty for violation of Part II.-New section, 100.

Case reserved.

520

See APPEAL.

Certiorari.

Certiorari after unsuccessful appeal from summary conviction under Ontario statute-Jurisdiction only reviewable.]

After an appeal has been taken from a summary conviction under the Ontario Summary Convictions Act, a certiorari can only be granted in respect of the want of jurisdiction or excess of jurisdiction of the convicting magistrate.

THE KING V. HORNING, (Ont.) 268

Summary conviction-Memorandum of, without formal record-
Jurisdiction to quash.]

A summary conviction evidenced only by a memorandum of con-
viction returned to a certiorari may be quashed, although no for-
mal record of conviction had been drawn up by the magistrate.
THE KING V. MANCION, (Ont.) 218

Recognizance Irregularity-Motion to quash recognizance.] (1) A recognizance given under the Ontario Crown Rule of November, 1886, to prosecute certiorari proceedings, is invalid if the principal cognizor enters into the recognizance before a justice of another county than that in which the conviction was made. (2) If a motion to quash an irregular recognizance in a certiorari proceeding is not brought on until the return of the motion to quash the conviction, the court may concurrently quash both the conviction and the recognizance if both are found to be defective. THE KING V. JOHNSON, (Ont.) 123

Rule nisi to quash conviction-Motion for-Jurisdiction of single Judge.]

The British Columbia Supreme Court sitting en banc as the Full Court will not hear a motion for a rule nisi to quash a conviction, as the motion might have been made to a single Judge under the British Columbia Supreme Court Act, sec. 5.

THE KING V. TANGHE, (B.C.) 160

Summary trial under Part LV. of Code-Effect of conviction-
Whether certiorari lies.]

(1) The Superior Court of the Province of Quebec has no jurisdiction to quash by way of certiorari decisions rendered by magistrates sitting for the summary trial of indictable offences in virtue of Part 55 of the Criminal Code.

(2) The review of such decisions, in so far as they are reviewable, belongs exclusively to the Court of King's Bench in the Province of Quebec.

(3) The Federal Parliament has the exclusive right to declare before what court existing in each province and exercising criminal