jurisdiction proceedings in criminal cases shall be carried on, including proceedings by certiorari after conviction.
(4) Provincial statutes in force at the time of Confederation in 1867 regarding certiorari in criminal matters, remain in force except in so far as they have been repealed by or are inconsistent with Dominion legislation.
THE KING V. MARQUIS, (Que.) 346
Certiorari-Waiver of right of appeal.]
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
Certiorari practice in British Columbia-Crown Rules, 1896.
Certiorari-Ontario Crown Rule of 1886-Recognizance.
Certiorari Statutory restriction to cases where an appeal would not be "an adequate remedy"-Question of jurisdiction—Ontario Summary Convictions Act as amended 1902 and 1904.
Champerty a criminal offence-Maintenance-Litigious rights.] (1) Champerty is a criminal offence, and a champertous contract will not be enforced by the courts.
(2) The English champerty laws became law in the Province of Quebec as a part of the English criminal law introduced or continued in that Province under the Quebec Act, 1774 (Imp.). MELOCHE V. DEGUIRE, (Can.) 89
On failure to testify, see CANADA EVIDENCE ACT.
Variance from the minute of adjudication.]
Where the sentence imposed upon a summary trial by consent be-
fore 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 commit-
ment thereon in similar terms are invalid, and the accused will
be discharged on habeas corpus.
EX PARTE CARMICHAEL, (N.S.) 19
Assault-Confession to person in authority-Onus of proving
statement was voluntary.]
(1) The rector of a cathedral is a person in authority over the
choir boys with respect to the investigation of an alleged assault
committed by them while on the way to a meeting of the choir,
and answers of a choir boy elicited by the rector and the choir-
master upon such investigation and stated to be only for the pur-
pose of that enquiry, are not admissible in evidence against the
choir boy afterwards prosecuted for the assault without proof
that the statement was voluntarily made.
(2) The onus of proving that the alleged confession was a vol-
untary one is upon the Crown.
THE KING V. ROYDS, (B.C.) 209
Summary trial-Counsel's assent to immediate trial by magis-
trate not a waiver.]
(1) Where there is a right to elect a summary trial before a
police magistrate, it is imperative that the magistrate state to
the accused the court at which the case can probably soonest be
tried by a jury.
(2) The right of the accused to be informed by the magistrate as
to the next jury court is not waived by a statement of his coun-
sel that he elects to be then and there tried by the magistrate.
(3) The fact that the accused is represented by counsel who was
probably aware of the time of the next jury sittings does not
abridge the magistrate's statutory duty to himself inform the
accused.
THE KING V. WALSH, (Ont.) 101
Informant in extradition proceedings-Execution of warrant of
arrest by.
(1) The constitutional right of a provincial legislature to enact
laws relating to "property and civil rights" does not cover
legislation, the effect of which is to prohibit a large class of per-
sons from working as miners because of their inability to speak
English.
(2) Such legislation relates to the subjects of "trade and com-
merce” and “aliens,” both of which are under federal jurisdiction.
(3) Rule 34 of the B. C. Coal Mines Regulation Act prohibiting
Chinamen and persons unable to speak English from being em-
ployed below ground is, in that respect, ultra vires.
THE KING V. PRIEST, (B.C.) 265
Harbouring deserters from foreign ship-Offence under Seamen's
Act (Can.).]
Sec. 104 of the Seamen's Act, R.S.C. 1886, ch. 74, which makes it
an offence to wilfully harbour a deserted seaman knowing him
to be a deserter, is intra vires of the Parliament of Canada.
THE KING V. MARTIN, (N.B.) 148
Summary trial-Constitution of court for enforcement of Part LV.
of Criminal Code.]
(1) It is within the legislative powers of a provincial legisla
ture to enact that every police magistrate shall constitute a court
with such jurisdiction as the Parliament of Canada confers or
purports to confer or may hereafter confer upon him.
(2) Such a statute is not an attempted delegation by the pro-
vince of its constitutional right of constituting courts.
EX PARTE VANCINI, (N.B.) 164
Jurisdiction of magistrate-Constitution of criminal courts.]
(1) Although there are no "courts of general sessions" except in
Ontario, the 1900 amendment of Cr. Code, sec. 785, extending its
provisions to cities and towns of other provinces is not, therefore,
inoperative, but gives to a magistrate in any other province the
jurisdiction created for Ontario by sec. 785.
Constitutional law-Continued.
(2) Though the organization of courts of criminal jurisdiction is
within the exclusive powers of the provincial legislatures, the
Parliament of Canada may impose upon existing courts or judi-
cial officers the duty of administering the criminal law, and its
action to that end need not be supplemented by provincial legis-
lation.
RE VANCINI (No. 2), (Can.) 228
Provincial legislative power-Delegation to municipal corpora-
tions-Indecencies in theatre performances.]
(1) A provincial legislature has jurisdiction to legislate concern-
ing matters of police regulation of public morals, but in so far as
the same subject is dealt with by the Dominion Parliament, the
Dominion legislation will prevail. [See now sec. 179A. of the
Criminal Code.]
(2) The power of enacting such police regulations may be dele-
gated by the provincial legislature to municipal councils.
(3) A by-law of the City of Montreal passed under the authority
of the Montreal Charter and providing a punishment for indecen-
cies in theatre performances is intra vires.
EX PARTE ASHLEY, (Que.) 328
Shop regulation-Power to regulate hours for the keeping open
of retail stores-Shop Regulations Act, R.S.M. 1902, ch. 156.]
(1) A municipal by-law is not invalid upon the ground of its
being unreasonable or oppressive or in restraint of trade, if passed
in the express terms of a statute under which the legislature dele-
gated to municipal councils the power to pass by-laws in respect
to the subject matter.
(2) The question of reasonableness is in such cases solely for
the legislature if the subject matter is within its legislative
power.
(3) The Shop Regulations Act of Manitoba, which purports to
authorize municipalities to limit the hours during which shops
shall be kept open for the sale of goods by retail is intra vires of
the provincial legislature as a matter of a merely local nature
under the British North America Act.
THE KING V. SCHUSTER, (Man.) 354
British North America Act, secs. 91 and 92-Powers of Federal
Parliament and of Provincial Legislatures.
Lack of particulars of offence; uncertainty.
See APPEAL; CERTIORARI; COSTS; HABEAS CORPUS; SPEEDY TRIAL;
STATED CASE; SUMMARY CONVICTION; SUMMARY TRIAL.
Quashing appeals from summary convictions-Jurisdiction as to
costs-Cr. Code, sec. 884.
Costs in criminal libel-Cr. Code, sec. 833.
Meaning of Information before a justice on a summary trial-
Cr. Code, sec. 713.
Frauds on-Cr. Code, sec. 368, as amended in 1904.
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