The procedure under sec. 750 is what is in question, but it will be necessary to consider sec. 757, and to trace the history of both sections. Before the revision of 1906 these sections were numbered 880 and 888 respectively.

In the Criminal Code of 1892, sec. 880 required the appellant, if imprisonment is adjudged, either to remain in custody or to enter into a recognizance before a Justice. If a money penalty is adjudged, with or without imprisonment in default, he must either remain in custody, give a recognizance, or make a cash deposit with the Justice convicting, equivalent to the security afforded by a recognizance. Section 888 requires the Justice to transmit the conviction to the appeal Court before the time when the appeal might he heard, and, if a deposit of money was made, "such Justice shall return the deposit into the said Court."

In 1905, effective on the 20th July, sec. 880 was amended by eliminating the provision for a deposit. No change was made in sec. 888, nor was any change made by the statutes of 1906. In the revision of 1906, however, effective on the 31st January, 1907, the provision as to the deposit was dropped from sec. 757 (886). Evidently it was superfluous, and the section was thus brought into harmony with sec. 750 (880) as it then stood.

In 1909 the provision for a deposit was restored, the new sec. 750, as now, requiring the appellant:

(1) If imprisonment adjudged, to remain in custody or enter into a recognizance before a Judge, Clerk of the Peace, or Justice;

(2) If a money penalty. adjudged, with imprisonment upon default, to remain in custody, give a recognizance, or make an equivalent cash deposit with the Justice convicting;

(3) If imprisonment in default not directed, to make the deposit with the Justice; and it was further provided for the first time that these requirements must be met within the 10 days limited for giving notice of appeal. No change was made in sec. 757 in 1909 or in 1910.

The course of this legislation prevents the conclusion that the omission from sec. 757 of the reference to the deposit indicates intention to change the law with regard thereto. Whether the failure in 1909 to make sec. 757 accord verbally and explicitly with sec. 750 was an oversight, or whether it was considered that the express direction once

contained was entirely unnecessary, may be an open question. In any event, what cannot be concluded from the manner in which the direction as to the deposit disappeared from sec. 757 is, that it indicates intention to change the law in reference thereto.

Section 72 of the Summary Convictions Act, 32 & 33 Vict. ch. 31, is precisely similar in material parts to sec. 888 of the Criminal Code of 1892. In 1881 in In re Ryer and Plows, 46 U. C. R. 206, it was held that this section (72) was directory, not imperative. Osler, J., said: "There is nothing that I am aware of which makes it necessary that the formal conviction should have been returned and filed before the appeal is entered, or even before the hearing has commenced. It must, no doubt, be proved at some time during the hearing, but at what time is a matter of practice and in the discretion of the Court."

In 1908, in Rex v. Williamson, 13 Can. Crim, Cas. 195, 7 W. L. R. 490, 1 Sask. L. R. 58 (sub nom. Harwood v. Williamson No. 1), it was held that sec. 757 of the Criminal Code is directory only, and the section was sharply distinguished from sec. 750. Wetmore, C.J., said: "I am also of opinion that sec. 757 is merely directory, that it is not a preliminary or condition precedent to the appeal, as are the requisites of sec. 750 of the Code."

In Rex v. Rondeau, 9 Can. Crim. Cas. 523, Scott, J., says: "It would appear, however, that, apart from this provision (sec. 886), it is his duty (the Magistrate's) to return not only the record of conviction, but also the depositions and all the proceedings." The learned Judge refers to Paley on Convictions, 7th ed., p. 367, where it is said, "The Justices out of Sessions are supposed to return their proceedings there," and also to the form of writ of certiorari, at p. 577, which requires the Justice "to send the said orders, with all things touching the same."

These cases and the history of the legislation effectually dispose of sec. 757 as any authority or even as any guide as to the procedure to be followed under sec. 750.

The cases also dispose of Rex v. Turnbull, 2 Sask. L. R. 186, 11 W. L. R. 55, cited on the argument. Rex v. Turnbull is a Chambers decision respecting a stated case delivered by the Justices after the time limited by Supreme Court Rule 35. The Rules of Court applicable are made under sec. 576 of the Criminal Code, and Rule 45 reads:

"Slight deviation from strict compliance with these Rules shall not invalidate any proceeding or thing if the Court or Judge sees fit to allow the same, either with or without requiring the same to be corrected." Johnstone, J., held that Rule 35 was directory, and that he was not precluded from hearing the appeal, citing, to this effect, Hughes v. Wavertree Local Board, 10 Times L. R. 335, and Mayer v. Hardy, L. R. 2 Q. B. 410, 16 L. T. 429. Reference may also be made to the notes on perfection of appeal following Regina v. Joseph, 6 Can. Crim. Cas. 144, where the Encyclopædia of Pleading and Practice, vol. 2, p. 244, is cited as authority for the statement that when the rule as to time is made by the appellate Court itself, it may relieve against it. Obviously, Rex v. Turnbull can have no bearing on the matter of compliance with the conditions precedent of sec. 750.

Just one thing may be drawn from sec. 757, and that from sub-sec. 4, which was also the work of the revision of 1906. The sub-section requires the clerk of the Court, in certain cases, after appeal, to return to the Justice all papers sent to the Court, "excepting any notice of intention to appeal and recognizance." This evidently contemplates that the Justice has forwarded to the Court all the proceedings, inclusive of the recognizance, although the Code nowhere specifically requires him to do so, nor is it anywhere therein stated that the recognizance must be filed. The same conclusion may be drawn as to the deposit from sec. 751, sub-sec. 2, which empowers the Court to make an order disposing of the deposit. As the Court could not properly make an order which it was unable to enforce, the evident contemplation is that the deposit has been forwarded to the Court. This sub-section in the revision of 1906 was restricted to deposits made before the coming into force of the amendment of 1905. In its present form it was enacted in 1909. This course of legislation quite clearly indicates, I think, an intention not to change the law applicable to a deposit whenever a deposit is permissible.

With reference, then, to sec. 750, in Regina v. Joseph, just cited, it is held, discussing this section, that the giving of security is an essential part of the appeal, and that the conditions precedent of the statute must be strictly complied with: Regina v. Crouch, 35 U. C. R. 433; that failure to comply goes to the jurisdiction: Regina v. Dolliver, 10 Can. Crim Cas. 405; that want of jurisdiction cannot be

waived; and that costs may be awarded where the appeal fails for want of jurisdiction. See also Re Myers and Wonnacott, 23 U. C. R. 611; McShadden v. Lachance, 5 Can. Crim. Cas. 43; Rex v. Neuberger, 9 B. C. R. 272; and Rex v. Williamson, cited above.

Coming then to the requirement as to the deposit under this section, which is the immediate issue in this appeal, the point is fully covered and determined by the two cases of Bestwick v. Bell, 1 Terr. L. R. 193, and Rex v. MeLeod, 4 W. L. R. 124. The former is a decision of the Supreme Court en banc of the North-West Territories, the requirement of the Summary Convictions Act as to the recognizance there in question being in no material respect different from that of the present section of the Criminal Code, except that no time was then limited within which the recognizance must be entered into. The latter is a decision of Newlands, J., when the Supreme Court of the Territories still exercised the jurisdiction now assigned to the District Court. I think I should regard both those decisions as binding on me, and I further accept them as accurate in principle.

Bestwick v. Bell simply decided "that, after the Court is opened for the hearing of the appeal, it is then too late. for the appellant to file his recognizance." The decision. rested primarily on an old case of Hall v. Winckfield, Hob. 195, 243, 80 E. R. 342, where this language is used: "It was agreed that, though it were not a perfect record till it were entered upon the roll, yet when it is entered it is a recognizance from the first acknowledgment, and binds persons and lands as a record from that time. For it is the acknowledgment before the Judge that gives it force of a record, though the inrollment be necessary for the testification, and perpetuating of it." Kent v. Olds, 7 U. C. L. J. 21, was also cited, where it was held that, "although the recognizance need not be entered into within 4 days, it must be entered into and filed before the sitting of the Court." It will be observed that Bestwick v. Bell makes no mention of the duty of the Justice to forward the recognizance or of any requirement in terms of the Summary Convictions Act that the recognizance must be filed, there being no such requirement; and the decision rests entirely upon the grounds stated.

In Rex v. McLeod, 4 W. L. R. 124, the appeal was from a conviction for selling liquor to an Indian. A deposit was

made with the Justice, but was retained by him. The case is, therefore, similar to the present appeal. Rex v. McLeod simply applies the principle of Bestwick v. Bell absolutely to the case of a deposit. Newlands, J., says: . . I am bound by Bestwick v. Bell . . . As the payment of money takes the place of the recognizance, it should have been deposited in Court, and, as it was not, I have no jurisdiction to hear the appeal." It is again to be noted that there is no mention of sec. 888, or of any language of the Criminal Code, and that the decision proceeds entirely on the fact that the deposit takes the place of the recognizance, and must be governed by the same principle as laid down in Bestwick v. Bell. See also Regina v. Gray, 5 Can. Crim. Cas. 24, to the same effect.

It is necessary to point out that, while the recent amendment of 1905 was in force at the time of the decision of Rex v. McLeod, it apparently was not brought to the attention of the learned Judge. Under that amendment, if imprisonment adjudged, the appellant could only give a recognizance, and, as he had not done this, his appeal would have failed for that reason. If imprisonment not adjudged, neither recognizance nor deposit was required. The appellant had merely done more than was requisite, and his appeal would have been heard. I am, therefore, satisfied that the amendment of 1905 was not before the learned Judge, and that the decision is virtually upon the Code as it stood prior to that amendment, and is to be so regarded.

Are there any distinctions in sec. 750, as it stands today, that prevent the application of these two decisions? I do not think so. The recognizance formerly had to be entered into before a Justice. Now, it may be entered into before a Judge, Clerk of the Peace, or Justice There would seem to be nothing essential in that. While the recognizance may be entered into before the persons named, the deposit must be made with the Justice convicting, who shall fix the amount of the same. This difference would not seem sufficient to support any distinction in principle as to the ultimate destination of the security. The difference in the nature of the security, the difference between an appellant seeking release from custody through an ample bond, and one who merely deposits a sum of money which the Justice convicting can best determine adequately, would seem sufficiently to account for the slight variation, and not to furn