Application of Part
774 This Part applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition.
Annotations
- Part XXVI
774.1
Appearance in person — habeas corpus
774.1 Despite any other provision of this Act, the person who is the subject of a writ of habeas corpus must appear personally in court.
Annotations
- Part XXVI
775
Detention on inquiry to determine legality of imprisonment
775 Where proceedings to which this Part applies have been instituted before a judge or court having jurisdiction, by or in respect of a person who is in custody by reason that he is charged with or has been convicted of an offence, to have the legality of his imprisonment determined, the judge or court may, without determining the question, make an order for the further detention of that person and direct the judge, justice or provincial court judge under whose warrant he is in custody, or any other judge, justice or provincial court judge, to take any proceedings, hear such evidence or do any other thing that, in the opinion of the judge or court, will best further the ends of justice.
Annotations
- Part XXVI
776
Where conviction or order not reviewable
776 No conviction or order shall be removed by certiorari
(a) where an appeal was taken, whether or not the appeal has been carried to a conclusion; or
(b) where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendant did not appeal.
Annotations
- Part XXVI
777
Conviction or order remediable, when
777 (1) No conviction, order or warrant for enforcing a conviction or order shall, on being removed by certiorari, be held to be invalid by reason of any irregularity, informality or insufficiency therein, where the court before which or the judge before whom the question is raised, on perusal of the evidence, is satisfied
(a) that an offence of the nature described in the conviction, order or warrant, as the case may be, was committed,
(b) that there was jurisdiction to make the conviction or order or issue the warrant, as the case may be, and
(c) that the punishment imposed, if any, was not in excess of the punishment that might lawfully have been imposed,
but the court or judge has the same powers to deal with the proceedings in the manner that the court or judge considers proper that are conferred on a court to which an appeal might have been taken.
Correcting punishment
(2) Where, in proceedings to which subsection (1) applies, the court or judge is satisfied that a person was properly convicted of an offence but the punishment that was imposed is greater than the punishment that might lawfully have been imposed, the court or judge
(a) shall correct the sentence,
(i) where the punishment is a fine, by imposing a fine that does not exceed the maximum fine that might lawfully have been imposed,
(ii) where the punishment is imprisonment, and the person has not served a term of imprisonment under the sentence that is equal to or greater than the term of imprisonment that might lawfully have been imposed, by imposing a term of imprisonment that does not exceed the maximum term of imprisonment that might lawfully have been imposed, or
(iii) where the punishment is a fine and imprisonment, by imposing a punishment in accordance with subparagraph (i) or (ii), as the case requires; or
(b) shall remit the matter to the convicting judge, justice or provincial court judge and direct him to impose a punishment that is not greater than the punishment that may be lawfully imposed.
Amendment
(3) Where an adjudication is varied pursuant to subsection (1) or (2), the conviction and warrant of committal, if any, shall be amended to conform to the adjudication as varied.
Sufficiency of statement
(4) Any statement that appears in a conviction and is sufficient for the purpose of the conviction is sufficient for the purposes of an information, summons, order or warrant in which it appears in the proceedings.
Annotations
- Part XXVI
778
Irregularities within section 777
778 Without restricting the generality of section 777, that section shall be deemed to apply where
(a) the statement of the adjudication or of any other matter or thing is in the past tense instead of in the present tense;
(b) the punishment imposed is less than the punishment that might by law have been imposed for the offence that appears by the evidence to have been committed; or
(c) there has been an omission to negative circumstances, the existence of which would make the act complained of lawful, whether those circumstances are stated by way of exception or otherwise in the provision under which the offence is charged or are stated in another provision.
Annotations
- Part XXVI
779
General order for security by recognizance
779 (1) A court that has authority to quash a conviction, order or other proceeding on certiorari may prescribe by general order that no motion to quash any such conviction, order or other proceeding removed to the court by certiorari shall be heard unless the defendant has entered into a recognizance with one or more sufficient sureties, before one or more justices of the territorial division in which the conviction or order was made or before a judge or other officer, or has made a deposit to be prescribed with a condition that the defendant will prosecute the writ of certiorari at his own expense, without wilful delay, and, if ordered, will pay to the person in whose favour the conviction, order or other proceeding is affirmed his full costs and charges to be taxed according to the practice of the court where the conviction, order or proceeding is affirmed.
Provisions of Part XXV
(2) The provisions of Part XXV relating to forfeiture of an amount set out in a recognizance apply to a recognizance entered into under this section.
Annotations
- Part XXVI
780
Effect of order dismissing application to quash
780 Where a motion to quash a conviction, order or other proceeding is refused, the order of the court refusing the application is sufficient authority for the clerk of the court forthwith to return the conviction, order or proceeding to the court from which or the person from whom it was removed, and for proceedings to be taken with respect thereto for the enforcement thereof.
Annotations
- Part XXVI
781
Want of proof of order in council
781 (1) No order, conviction or other proceeding shall be quashed or set aside, and no defendant shall be discharged, by reason only that evidence has not been given
(a) of a proclamation or order of the Governor in Council or the lieutenant governor in council;
(b) of rules, regulations or by-laws made by the Governor in Council under an Act of Parliament or by the lieutenant governor in council under an Act of the legislature of the province; or
(c) of the publication of a proclamation, order, rule, regulation or by-law in the Canada Gazette or in the official gazette for the province.
Judicial notice
(2) Proclamations, orders, rules, regulations and by-laws mentioned in subsection (1) and the publication thereof shall be judicially noticed.
Annotations
- Part XXVI
782
Defect in form
782 No warrant of committal shall, on certiorari or habeas corpus, be held to be void by reason only of any defect therein, where
(a) it is alleged in the warrant that the defendant was convicted; and
(b) there is a valid conviction to sustain the warrant.
Annotations
- Part XXVI
783
No action against official when conviction, etc., quashed
783 Where an application is made to quash a conviction, order or other proceeding made or held by a provincial court judge acting under Part XIX or a justice on the ground that he exceeded his jurisdiction, the court to which or the judge to whom the application is made may, in quashing the conviction, order or other proceeding, order that no civil proceedings shall be taken against the justice or provincial court judge or against any officer who acted under the conviction, order or other proceeding or under any warrant issued to enforce it.
Annotations
- Part XXVI
784
Appeal in mandamus, etc.
784 (1) An appeal lies to the court of appeal from a decision granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition.
Application of Part XXI
(2) Except as provided in this section, Part XXI applies, with such modifications as the circumstances require, to appeals under this section.
Refusal of application, and appeal
(3) Where an application for a writ of habeas corpus ad subjiciendum is refused by a judge of a court having jurisdiction therein, no application may again be made on the same grounds, whether to the same or to another court or judge, unless fresh evidence is adduced, but an appeal from that refusal shall lie to the court of appeal, and where on the appeal the application is refused a further appeal shall lie to the Supreme Court of Canada, with leave of that Court.
Where writ granted
(4) Where a writ of habeas corpus ad subjiciendum is granted by any judge, no appeal therefrom shall lie at the instance of any party including the Attorney General of the province concerned or the Attorney General of Canada.
Appeal from judgment on return of writ
(5) Where a judgment is issued on the return of a writ of habeas corpus ad subjiciendum, an appeal therefrom lies to the court of appeal, and from a judgment of the court of appeal to the Supreme Court of Canada, with the leave of that Court, at the instance of the applicant or the Attorney General of the province concerned or the Attorney General of Canada, but not at the instance of any other party.
Hearing of appeal
(6) An appeal in habeas corpus matters shall be heard by the court to which the appeal is directed at an early date, whether in or out of the prescribed sessions of the court.
Annotations
- Part XXVI