transferring the cases to Montreal, are alleged to have ceased to exist since the date of that order, the decision now given is, in no sense, to be considered, in regard to that ground, as amounting to even a suggestion that I would have decided otherwise than he did upon the applications and the facts laid before him. For the same reason as well as for the other reasons above indicated, it will apparent that the order now made is not an interference with a discretion previously exercised.

Order made changing venue.

A. D. Girard, K.C., for the petitioner.
F. W. Hibbard, K.C., for the Crown.

Note: Change of venue in criminal trials-Cr. Code (1906) sec. 884.

Section 884 of the Criminal Code makes the following provision:

"Whenever it appears to the satisfaction of the Court or Judge hereinafter mentioned, that it is expedient to the ends of justice that the trial of any person charged with an indictable offence should be held in some district, county or place other than that in which the offence is supposed to have been committed, or would otherwise be triable, the Court before which such person is or is liable to be indicted may, at any term or sitting thereof, and any Judge who might hold or sit in such Court may, at any other time, either before or after the presentation of a bill of indictment, order that the trial shall be proceeded with in some other district, county or place within the same province, named by the Court or Judge in such order."

Such order shall be made upon such conditions as to the payment of any additional expense thereby caused to the accused as the Court or Judge thinks proper to prescribe. Section 884 (2).

To effect a change of venue, or, more correctly, to change the place of trial, the Court must be specially moved for the purpose. It does not rest with the Crown to select the place for trial by suggestion or otherwise, as it may desire. And the Court will refuse or grant the motion as it may see fit. But it will be granted when there is a reasonable probability that a fair and

Note-Continued.

Change of venue in criminal trials-Cr. Code (1906) sec. 884.

impartial trial cannot be had in the place where the cause would otherwise be tried. Per Sir Adam Wilson, C.J., in R. v. Carroll (1880), (the Biddulph murder case), cited in 2 Can. Cr. Cas., at p. 200.

The power to change the venue is partly discretionary and should be used with great caution. R. v. Russell (1878), Ramsay's Cases (Que.) 199; Ex parte Corwin, 24 L.C.J. 104.

Where the application was made on the part of the accused it was held sufficient to justify the change, that persons might be called on the jury whose opinions might be tainted with prejudice and whom the prisoner could not challenge. Ibid.

Under section 887 which applies only to Quebec, and which is taken from 32-33 Vict. ch. 29, sec. 11, the power to change the venue appears not to be limited to a Judge sitting in the district where the offence is alleged to have been committed. Ex p. Brydges (1874), 18 L.C. Jur. 141.

A change of venue should not be made in a criminal case whereby the trial would be transferred from the county in which the crime is alleged to have been committed, unless facts are proved, as distinguished from sworn opinions, plainly indicating that a fair and impartial trial cannot be had in that county. R. v. Ponton (No. 1) (1898), 2 Can. Cr. Cas. 192 (Ont.).

A change of venue should not be granted on the ground of popular sympathy with the prisoner and prejudice against the prosecution, where there is nothing to shew that the class of citizens from whom the jury would be drawn are likely to be prejudiced except by those feelings which arise from the nature of the offence and which are common in all counties. Ibid.

But a change of venue may be ordered under this section on the application of the Crown, where at an abortive trial, at which the jury disagreed, a hostile demonstration was made. against the Judge by a mob assembled in the streets during a short adjournment of the trial. R. v. Ponton (No. 2) (1899), 2 Can. Cr. Cas. 417.

The change is rendered "expedient to the ends of justice" because the conduct of the mob tended to bring the administration of justice into contempt, and because of its possible influence on a jury at the next trial; and this notwithstanding the sworn

Note-Continued.

Change of venue in criminal trials-Cr. Code (1906) sec. 884.

statements of every juror at the abortive trial that they were in no way intimidated or influenced by the mob demonstration, part of which took place within hearing of the jury during their deliberations. Ibid.

Affidavits from the jurors denying intimidation are properly admissible in evidence on a motion to change the venue where such intimidation is charged. R. v. Ponton (No. 2) (1899), 2 Can. Cr. Cas. 417.

An order for change of the place of trial is not open to objection on the ground that it makes no provision for the additional expense to which the accused might be put by the change, if the Judge making such order was not asked to make an order as to such additional expense, and if it was not shewn to such Judge that additional expense would be occasioned. R. v. Coleman (1898), 2 Can. Cr. Cas. 523.

Where, after a committal for trial for an offence under the Criminal Code, an order is made changing the place of trial to another county, an indictment may be preferred in the latter. county not only for the offence for which the accused was committed for trial, but for any other offence disclosed in the depositions taken before the committing justice. Ibid.

In order to obtain a change of venue in a prosecution for defamatory libel such facts must be shewn as will satisfy the Court that a fair trial cannot be had at the present venue, and it is not sufficient that the applicant's solicitor swears to a belief that a fair trial is impossible there because of the prosecutor's interest in political affairs. The fact that two abortive trials of the cause have already taken place at both of which the jury disagreed, is not of itself a ground for ordering a change of venue. R. v. Nicol (1900), 4 Can. Cr. Cas. 1 (B.C.).

A change of venue has been granted upon prisoner's solicitor's affidavit that from conversations he had had with the jurors, he was convinced of a strong prejudice against the prisoner. R. v. McEneaney, 14 Cox 87; R. v. Walter, 14 Cox 579.

A balance of convenience as regards the distance which the witnesses would have to travel is not alone a ground for changing the venue in a criminal case. R. v. O'Gorman (1907), 12 Can. Cr. Cas. 230 (Ont.). The principal ground for a change of venue

Note-Continued.

Change of venue in criminal trials-Cr. Code (1906) sec. 884.

under section 884 is a reasonable probability of partiality and prejudice in the locality from which the jury would be drawn if the venue were not changed. Ibid.

It is also a ground for changing the venue that a "view" must be had in another county by the jury during the trial. R. v. Clerk, 9 H.L.C. 184; R. v. Dunn, 11 Jur. 287.

[HIGH COURT OF JUSTICE, ONTARIO.]

BEFORE THE HONOURABLE SIR WILLIAM GLENHOLME FALCONBRIDGE, CHIEF JUSTICE OF THE KING'S BENCH, AND BRITTON AND RIDDELL, JJ.

THE KING v. LEACH et al.

Certificate of previous conviction-Charge of second offence-Proof of identity-Presumption from similarity of name-Limited application of Code sec. 982-Reading over and signing depositions before magistrate Waiver Imprisonment a “penalty" Costs in quasi-criminal matters under provincial law-Liquor License Act, R.S.O. 1897, c. 245, sec. 101-Cr. Code (1906) secs. 683, 711, 721, 722, 982.

1. Under the Ontario Liquor License Act, R.S.O. 1897, ch. 245, sec. 101, the question of the identity of the accused, charged with a second offence, with the person previously convicted is one for the magistrate to determine upon the evidence before him apart from his personal recollection, but a certificate of the previous conviction in the same locality of a person of the same name is some evidence of identity.

2. A certificate under the Liquor License Act of a prior conviction thereunder is not affected by Code sec. 982, under which evidence of identity apart from and in addition to a certificate of the prior conviction is required on the trial for an indictable offence if a prior conviction of the accused is to be proved.

3. Per BRITTON, J.:—Quære, whether Code sec. 982 has any application other than to the trial of indictable offences.

4. Statutory provisions that the witnesses should have the depositions read over to them and should sign the same are directory only, and are waived by the accused if he consents to the evidence being taken down in shorthand.

5. A "penalty" ordinarily means a suffering either in person or in property as a punishment annexed by law or judicial decision to a violation of law, and sentences of imprisonment are included.

6. Sec. 722 (2) of the Criminal Code applies to prosecutions under the Ontario Liquor License Act, and, therefore, a summary conviction awarding imprisonment for a second offence may be made on evidence taken in the absence of the accused at an adjourned hearing of which he was duly notified.

7. In Ontario the High Court disposing of a habeas corpus application in respect of a summary conviction under a provincial statute, e.g., the Liquor License Act, may award costs against the unsuccessful applicant. R. v. Herrell, 1 Can. Cr. Cas. 510, considered.

ARGUED November 3 and December 2, 1908.
DECIDED

November 12 and December 12, 1908.

THE motion in the case of Rex v. Leach was a motion for the discharge of the prisoner William Leach on the return of a writ of habeas corpus issued herein and a writ of certiorari issued in aid thereof.

This was a conviction by the police magistrate of the town of Owen Sound for a second offence of unlawfully selling intoxicating liquor without the license required by law.

C. S. Cameron, for the prosecutor.

A. G. Mackay, K.C., for the prisoner.

The grounds relied on were:

1. That the evidence was improperly taken down in shorthand.

2. That there was no proof of the identity of the prisoner with the person who had been previously convicted.

3. That the conviction should have alleged that the information had been laid, and the conviction had, for a first offence, and such information should have been proved on the hearing.