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 A HANDBOOK 
 
 FOB 
 
 MAGISTRATES, 
 
 IN RELATION TO 
 
 SUMMARY CONVICTIONS AND ORDERS 
 
 AND 
 
 INDICTABLE OFFENCES. 
 
 BY 
 
 HON. THOMAS H. McGUIRE, 
 
 One of the Justices of the Supreme Court of the 
 North-West Territories. 
 
 TORONTO : 
 CARSWELL Si CO., LAW PUBLISHERS. 
 
 1890. 
 
Ya>v.U "B 
 
 Entered according to Act of the Parliament of Canada, in the year one thousand 
 eight hundred and ninety, by Cabswell & Co., in the rfflce of the Minister 
 of Agriculture. 
 
 PRINTED BY 
 
 Thos. Moobe & Co., Law Pbintebs 
 22 & 24 Adelaide St. East 
 
 TORONTO. 
 
TO 
 
 HIS HONOUR JOSEPH ROYAL, LL.D., 
 
 Lieutenant-Governor of the North-Wext Territorien, 
 
 AU AN 
 
 HUMBLE TRIBUTE TO THE HONOURABLE POSITION ATTAINED BY HIM 
 AS A LAWYER, LAWMAKER 
 
 AND 
 
 ADMINISTRATOR OF THE LAWS, 
 
 THIS LITTLE BOOK IS RESPECTFULLY DEDICATED. 
 
PREFACE. 
 
 rpHE following little book was written at the suggestion 
 of many Justices of the Peace who desired some plain 
 and simple guide to the procedure Acts in relation to Sum- 
 mary Convictions and Orders, and their duties in dealing 
 with Indictable Offences. It was not intended to displace 
 the several very valuable but more voluminous works 
 already before the public on the subject of magisterial 
 law. For a large majority of the Justices of the Peace, 
 these larger works contain more information than they are 
 ever likely to need, and the price is to many a stumbling 
 block. The writer has endeavored to use language as free 
 from technical expressions as possible. As magistrates 
 rarely have the Eeports, but few references have been 
 made to authorities. While intended only for the assis- 
 tance of magistrates, it is possible that some members and 
 students of the legal profession may find here hints or 
 reminders of matters which have escaped their attention 
 or their memory. 
 
 The device of conveying information by means of maps 
 or charts is of course not original, though so far as I am 
 aware the charts which accompany this book are. They 
 may be found useful by presenting a large field before the 
 eye at a glance. 
 
yi PREFACE. 
 
 If these pages shall be instrumental in lessening the 
 perplexities of the painstaking Justice of the Peace and 
 preventing him falling into some mistakes which he might 
 otherwise have made, the writer will feel more than 
 rewarded for such labour as he has been able to expend 
 on it, and the Justice (if he is a purchaser) will, I trust, 
 feel that his money has not been entirely misspent. 
 
 M. 
 
 ( I 
 
TABLE OF CONTENTS. 
 
 PACIE. 
 
 Introductory observations— How J. P. becomes so- Oaths- 
 Authority to deal with matters- Summary or Indictable. . l-S 
 
 PART I. 
 
 Summary matters 7 
 
 Jurisdiction how f,'iven 7.3 
 
 Preparing? information, etc g.l2 
 
 Number of justices necessary 12 IH 
 
 What one J. P. may do— Securing; attendance of defendant 13 
 
 When warrant may issue 15 
 
 How executed K; 
 
 Witnesses, securing attendance 17 
 
 Who are comi e* it 19-20 
 
 Number requii .. 20-21 
 
 Where . bveral justices sit, majority must a<,'ree — Place of trial 
 
 an open court— Failure of defendant to appear 21 
 
 Proceeding in his absence— Adjournments not to exceed a week 
 
 — Non-appearance of prosecutor 22 
 
 What becomes of defendant during adjournment— The trial. . . . 2ii 
 
 " Showing cause " 23-24 
 
 Witnesses — To be orally examined— How sworn— Oath— Affir- 
 mation 24 
 
 Rules of evidence 25 
 
 Cross-examination 26 
 
 Defence— Evidence in reply 27 
 
 Negativing exceptions— The decision • 28 
 
 For or against defendant- Minute of 2d 
 
 Cases under Larceny and Malicious Injuries' Acts— First offence 
 
 — Costs 30 
 
 Enforcing payments— Modes of— Distress or imprisonment 31-3(5 
 
 Forms of convictions and orders 86-37 
 
 Order of dismissal — Vagrant Act 38 
 
 Larceny Act— Malicious Injuries' Act— Imprisonment for non- 
 payment — Joint offenceo 39 
 
 Second offences 40 
 
Viii TABLE OF CONTENTS. 
 
 PAOK. 
 
 Waiver— Married women, etc., criminal responsibility 41 
 
 Aiders and abettors— Several offences ^-^ 
 
 Returns of convictions 42-44 
 
 Appeals 
 
 Stating a case 
 
 Miscellaneous hints— Summary offences 4o 
 
 PART II. 
 
 Indictable offence— Procedure, how re^^ulated— Is it an in- 
 dictable offence 
 
 Jurisdiction of J. P 
 
 Where certain offences deemed to have been committed 51-52 
 
 Information 
 
 Bringing up the accused 'j' 
 
 Summons or warrant *^_ 
 
 How executed 
 
 Appearance of accused— room not an open court— Some other 
 
 J. P. may hear the evidence '^'' 
 
 Witnesses 'I 
 
 Remanding accused 
 
 The examination— Depositions "'^ 
 
 Caution to accused— Confessions by ^" 
 
 Removing effect of threats or promises '^^ 
 
 Evidence for defence ' 
 
 J. P. not to try the case '^ 
 
 Dismissing charge— Holding to bail -Power to admit to bail.. . . 03 
 
 Judge's order when necessary '•''" '* 
 
 Committing to gaol— To what gaol *J'> 
 
 When J. P. cannot dismiss charge *J*' 
 
 Transmitting depositions— Binding witnesses '»7 
 
 Prosecutor may insist on being bound over— Notice to J. P. of 
 
 application to Judge for bail "" 
 
 Search warrants 
 
 Appendix 
 
CASES CITED. 
 
 49 
 50 
 1-52 
 2-5:^ 
 58 
 54 
 55 
 
 5(; 
 
 57 
 58 
 59 
 (50 
 til 
 
 »;i 
 
 ()-2 
 
 (;3-()4 
 
 ()5 
 ()() 
 ()7 
 
 VMiK. 
 
 Bowdlers' case Si) 
 
 Brown v. Smden 83 
 
 Ex-parte Foulkes 81) 
 
 McFarlaiie v. the Queen 14 
 
 Parsons qui lam v. Crabbe 40 
 
 Read v. Hunter , lo 
 
 Reg. V. Alexander 28 
 
 Reg. V. Ferris 84 
 
 Reg. V. Flanigan 2() 
 
 Reg. V. French 22 
 
 Reg. V. HalJ 28 
 
 Reg. V. Hamilton ,... 87 
 
 Reg. V. Hughes 41 
 
 Reg. V. ]\[abee 15 
 
 Reg. V. Scott 8ii 
 
 Reg. V. Smith 15 
 
 Reg. V. Tucker 84 
 
 Reg. V. Wright 87 
 
 75 
 
,,»,..,.„„,. j,.„. .,...-J^.»T- 
 
 ThoB 
 ' Offences 
 ' Hiirainarilj 
 
 oniuent, fl 
 Sty- Aii"Ii 
 ' is a Btatein 
 'w».7 (8. 13; 
 , not in ger 
 - oath unless 
 ; 1. Special i 
 
 i!. Or if it 
 
 to i8BU0 .1 
 
 tlio first 
 
 II 
 ii 
 
 81 
 
 I'roceo 
 
 How to ( 
 v.), a), -21 
 
 pilSll of 
 
 arroHt. 
 
 S 
 
 Couvicti 
 
 I, J. 2 oi 
 
 J_ 
 
 ill cases iind 
 
 nyAct, Ml 
 
 jury to nr 
 
 case of f 
 
 Biice. Seel 
 
A. 
 
 PROCEDURE UNDER SUM. CON. ACT. 
 
 The matters with which a J. P. may deal SumxMauily are those 
 
 commenced either : — 
 
 By an " Iiifc niiiitioii " 
 I followed by citlior ii 
 
 By a "Complaint," viz. 
 followed by g I 
 
 VIZ. 
 
 Those are : 
 lOtrenoo.s punialiablo 
 I summarily by iuipris- 
 lonment, fluo or ponal- 
 Jty. An "Information" 
 lisa atatemeut in writ- 
 ling (S. 13), but need 
 ■not in general bo on 
 \oath unless:— 
 11. Special Act says so. 
 . Ur if it is intended 
 to issue .1 warrant in 
 the first instance. 
 
 I 
 
 Warrant (D) in 
 tlio ilrst in- 
 Rtanco, instead 
 of a sum- 
 mons : — 
 
 SUMMONS 
 Deft. S. 13, 
 B. 
 
 to the 
 Form 
 
 Matters in which a J.l'- 
 can mako an Order for 
 payment of money, &<■. 
 
 If the matter of the 
 information has been 
 sul)8tantiatedonoath. 
 
 (S. 18.) 
 
 WHien deft, 
 boon duly 
 ed:— 
 
 has 
 serv- 
 
 If ho does NOT at- 
 tend, then on proof 
 on oath of tho ser- 
 vice and tlio trutli 
 of the matter in 
 Inf. or Couip, 
 
 I How served. 
 By constable, 
 Ac, (S. 11). 
 
 1. By delivor- 
 iiiR it person- 
 ally to him, or 
 
 2. By leaving 
 it with sonio 
 one for him. 
 (a) At his last or 
 (6) Most usual 
 
 place of abode. 
 
 A complaint (unless the 
 special Act requires it), 
 need not bo eitlier : 
 
 1. In writing — S. 23. 
 
 2. Or on oath— 8. 24. , 
 
 If he does at- 
 tend. 
 
 ) J. P. may adjourn or Proceed to 
 and issue a war- heiiiiii^'. 
 
 rant (C), (1)1. ~ 
 
 the 
 
 ProceodingB under 
 Warrant. 
 
 How to execute, seo ss. 
 I'J, 20, 21 and 40. Dis- 
 posal of prisoner after 
 arrest. S. 40(F). 
 
 Tho hearing (S. 33) in a pub- 
 lic, ojion Court. 
 
 If both parties ap- 
 poar. Then if Deft, 
 personally present, 
 read the charge. 
 
 If only one sido 
 appears : then 
 
 I 
 
 If he admits. If bo denies. 
 
 Proceed with 
 the trial, S. 39. 
 
 If it is tlio 
 
 complain- 
 ant. 
 
 I 8. 17. I S. 3 '.l. 
 
 ,\d,journ, and 
 issue warrant. 
 ((>.) 
 
 I 
 
 If it is tho 
 defendant. 
 
 See Sections 2<j, 30, 31. 33. 
 Forms of Summons E. 1. 
 Form of War ran t( A ), E . 3. 
 
 Adjournments. 
 Not over a week, S. 52. 
 
 What is done witli Deft, 
 during the adjourn- 
 ment. See S. 48 to 51. 
 
 Dismissthocaso. ,_ Adjourn. 
 S. 41, .^O. '"^ S. 43. 
 
 Whore tho trial proceeds, 
 prosecutor calls his wit- 
 nesses, and tlio defendant 
 calls his witnesses. 
 
 J. P. prepares his decision, makes a 
 minute of it. S. .02. Followed l)y a 
 
 8.53.- 
 
 Conviction, J. 
 1, J. 2 or .7.3. 
 
 I 
 
 S. ,53. 
 
 S. .50, 
 
 or 
 
 , Order, Forms, K. Orilor of Dismiss 
 
 111 cases under Lar- 
 kiiiy Act, Malicious 
 lijury to jiropertv, 
 pi case of first 6f- 
 Buce. Bee 8, 65. 
 
 1, K. 2, K, 2 
 
 L 
 
 Servo copy of the 
 Order before dis- 
 tress or arrest. 
 8. 57. 
 
 ' aKL). Certif.(M). 
 
 — With or wi thout. 
 Order for costs. 
 S. 50, 61. 
 
If cost 
 
 1. 
 
 Dis( 
 
 2. 
 
 If N 
 
 
 ovo 
 
 U 
 
 iilesf 
 
 
 rimd 
 
 (1 
 
 ) Cos 
 
 !'■> 
 
 > " 
 
 
 
 ■i 
 
 Cos 
 
 
 moil 
 
B. 
 
 AFTER THE TRIAL. 
 
 Tlie J. I'.'s decision must bo oitlier : — 
 
 In favour of the Doft. 
 
 or 
 
 Against tlio Doft 
 will bo eitlioi- :— 
 
 and 
 
 Order of Dismissal (L.> S. 56. 
 Certiflc. " (M.j " 
 
 Ordoriiiay allow costs. S. .59 . 
 
 I S. 61, W. 
 
 A CONVICTION 
 
 under which 
 
 If costs not paid :— 
 
 1. Distrain (P. 1). 
 
 2. If N.IJ.connnit not 
 over 1 mouth H.L. 
 
 Unless i)ayment is 
 made of 
 
 (li Costs aforesaid. 
 
 (2) " of distress. 
 
 :i Costs of commit- 
 ment, &c. 
 
 The punishment is 
 by imi)risonment 
 with or without 
 costs. 
 
 If costs ar(! not paid 
 remodies are 
 
 1. Distress. 
 
 2. If N.ll. commit 
 not over ouo month 
 H.L. unless paid. 
 
 An ouDKii by 
 which eith- 
 er: — 
 
 "Tk. 3. I 
 
 "H.L." means that the im- 
 prisonment may ho either 
 with or without bard labour. 
 " N.15." means ether that a 
 return of no ^oods has l)oon 
 made to a Distress Warrant 
 or that Deft has no floods or 
 that distress would i)e ruin- 
 our to Doft. and his family. 
 
 A sum of money Deft, is ordered 
 is ordered to bo todosonioactor 
 paid. nottodoKO,witli 
 
 or with out costs. 
 
 ~" rH.Gi:~ 
 
 If not obeyed 
 commit O. 2, 
 K. .t. 
 
 If tlio Act or Law 
 under which the 
 proceedinf:!s are 
 taken provides : — 
 
 S. C-2. H.Gl. 
 
 If costs are not paid, 
 
 (1) Distrain. 
 
 (2) If N.H. commit one 
 month ILL. unless sooner 
 paid. 
 
 H. 
 
 A mode of enforcing pay- 
 ment either : — 
 
 or 
 
 No mudo of enforcing r>„, „„ a ru 
 payment proceed:- ^^^^-^^ 8.68. 
 
 By choice of: 
 
 1. Distress, or 
 
 2. Imprisonment. 
 
 By Imprisonment. 
 ■h 2. K. 2. 
 
 or 
 
 Bv Distress. 
 J. 1. K. 1. 
 N. 1. N. 2. 
 
 If J.P. selects Pis- 
 tress, proceed as 
 in (c). 
 
 It .r.P. Selects Im- 
 prisonment, pro- 
 ceed as in (b). 
 
 COSTS. 
 
 |ts are recovei-ed by 
 
 I warrant and in same 
 iiior as the penalty, if 
 
 S. GO. 
 piero bo no penalty to 
 I'ct, then 
 Jy Distress, 
 f \. H. then by imprison- 
 
 'lit 1 month H.L., if 
 Dt sooner paid. 
 ease of costs on order 
 lisniissal, the costs of 
 fross and " " 
 
 miitmeiit, &c. (S. 7u;, 
 
 be ordered. 
 
 DISTRESS. 
 
 Pending a return to 
 a Warrant of Dis- 
 tress what becomes 
 of th.- Deft. ? S. 05. 
 
 1. Lot go at large, 
 
 or 
 
 2. Verbally or liy 
 Warrant kept in 
 cnstoHy, or 
 
 3. Lot out on 
 recognizance or 
 otherwise. H. 65. 
 
 If not paid commit to goal, 
 O, 1, 2. 
 
 1. For time named in Act, 
 
 2. In manner " " 
 With II. L. if " 
 Without H. L. if not auth- 
 orized by the Act. 
 
 Unless soooner paid. 
 
 If tho -Vet gives a furtliei 
 remedy in case of a re- 
 turn N.B. S. 61). 
 
 S.C6. 1 
 
 1. Commit (N.5) for period 
 
 named in Act. 
 H.L. if authorized by Act. 
 Without H.L. if not; 
 unless iiayment is sooner 
 made of 
 
 Penalty and costs. 
 Costs of Distress, costs of 
 Commitment, &c., if J P. 
 sees tit. 
 
 If Doft, has no goods or 
 Distress would bo ruin- 
 ous (S. Ci:, or 
 If Distress Warrant 
 
 returned " N. B." 
 (Form N. 4\ then 
 
 If the .\.ct gives no 
 fiirtlior remedy in 
 case of return N.h. 
 S. 07^ 
 
 S. 67. I 
 
 Co. unit not over 3 
 months without H.L. 
 unless payment 
 sooner made of 
 
 Penalty and (^osts in 
 tlie conviction. 
 
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-W 
 
EEKATA ET ADDENDA. 
 
 On Page 19, for " Ch. 162, " read " Ch. 161 " in each caHe. 
 19, 15th line from top, for " s. 11," read " 8. 13." 
 
 20, 7th 
 
 21, 3rd 
 24, 16th 
 26, 13th 
 28, 26th 
 J 5, 16th 
 58, 17th 
 
 line 22 add "see M. 4." 
 
 "a. 9," read " s. 11." 
 
 "8.11," " "8.13." 
 
 " 8. 11," " " 8. 13." 
 
 " p. 62," " " p. 60." 
 
 " 18 0. K. 169," read " 17 O. R. 458." 
 
 " ch. 20, s. 44" " " ch. 178, a. 74." 
 
 " M. 4," read " M. 2," and at end of 
 
 Page 61, 22nd line from top, for " 3 App. Rep." road " 8 App. Rep. ' 
 and add thereafter : 
 
 " In this case it is pointed out that in England, by Cli. 35, s. 3, of 
 " 1867, the Justice is expressly required to take the depoaitiona of the 
 " witnesaes tendered by the priaoner, a proviaion that might with juatice 
 " be introduced into our Act." 
 
 Page 74, 16th line, for " Ch. 158," read " Ch. 158* " After line 25 add 
 " Ch. 170* aa. 8, 9, 12." 
 
 Page 73, From line 16 strike out " s-s. ] " 
 " " 19 " "20." 
 
s 
 
 m 
 
 no 
 
 re 
 so 
 
 ta 
 qu 
 ril 
 ofl 
 of 
 
 Il( 
 
 th 
 of 
 
 CO 
 
 kii 
 aid 
 
PROCEDURE 
 
 UNDER 
 
 SUMMARY CONVICTIONS ACT. 
 
 INTUODUCTOKY OBSEUVATIONS. 
 
 A Justice of the Peace becomes so either 
 
 (1) By virtue of a commission, or 
 
 (2) Ex officio by virtue of holding some other office, as 
 mayor, councillor, etc. 
 
 In the North-West Territories niembera of municipal councils are 
 not ex officio J. P.'s. 
 
 In the former case he continues to be a justice until he 
 resigns or his commission is cancelled ; in the latter only 
 so long as he holds that other office. 
 
 We will assume that our justice (by commission) has 
 taken the oaths of allegiance, of office and of property 
 qualification (if any) prescribed by statute, or in the Ter- 
 ritories by Ordinance No. 14 of 1889 ; or, if he is an ex 
 officio justice, that he has taken the oath of office required 
 of such officer; that he has provided himself with the 
 Revised Statutes of Canada, or at least the criminal laws 
 therein, and amendments, and the statutes or ordinances 
 of his own province, and is ready to attend to matters 
 coming before him. 
 
 A person now presents himself with a grievance of some 
 kind. The J. P., after hearing his statement, will con- 
 sider if it is a matter with which a magistrate has any 
 
 MCG.S.C. — 1. 
 
' r 
 
 2 Jurisdiction of a Justice. 
 
 right to meddle. If it be for a breach of contract or other 
 subject of a civil action, as a rule a justice has no juris- 
 diction over it. Sometimes, indeed, he can deal with 
 matters which might also be a ground of civil action, but 
 only when some statute or law makes it an offence punish- 
 able in some manner, or expressly gives a justice power to 
 deal with it in a summary way. For example, a complaint 
 of non-payment of wages can be dealt with by him, though 
 non-payment of a merchant's account can not. He can 
 deal with the wages case because a statute or ordinance 
 especially gives him that power. If it did not do so, the 
 servant's only remedy would be to sue his master. Again, 
 if my neighbour unlawfully and maliciously pulls down my 
 fence, I may sue him in a civil action for damages, but I 
 may, if 1 prefer it, lay an "information" before a J. P. 
 who, by Statute (R. S. C. ch. 108, s. 27), has power to fine 
 him a sum equal to the amount of the damage and up to 
 five dollars in addition. If the offender, after conviction, 
 satisfies me for the damage and the costs (if any) the 
 justice may, in case of a Jirst offen(3e, let him off the 
 fine (R. S. C. ch. 178, s. 55). But, if my neighbour chooses, 
 he may pay the whole fine, etc., to the J. P., in which case 
 the Crown will be the gainer and I will receive nothing, 
 and I cannot afterwards sue for damages. 
 
 So also if my unruly neighbour assaults me, I have 
 three ways of proceeding against him, two of which are 
 given by Statute (E. S. C. ch. 162, s. 36). That section 
 provides that an assault may be punished on "indictment,'^ 
 i.e., by a judge, with or without a jury, or "on summary 
 conviction," i.e., before a J. P. Another Act (H. S. C. 
 ch. 178, 8. 73) provides that when making my complaint 
 to the J. P. I can ask him to deal with it in a summary 
 way, which gives him power to so deal with it, subject to 
 
w 
 
 Jurisdiction of a Justice. 3 
 
 8. 73 8-88. 2 I'i: 3 ; but if I do not request him to deal \^" h 
 it summarily, lie can then only hear the evidence and, if 
 he thinks it sutBcient, commit the offender to be tried by 
 a higher court. If I request him to try it summarily, and 
 he does so, I cannot afterwards adopt my third remedy of 
 suing for the damages by a civil action. (R. S. C. eh. 178, 
 88. 74, 75.) 
 
 In order that a J. P. should have power to deal with a 
 matter, it must be either a " crime " at common law or 
 made so by statute, or some statute, ordinance or by-law 
 must give him power to deal with it in a summary way. 
 
 If he has power to deal with it at all, that power is 
 either — 
 
 I. To try it in a summary way, that is, to hear all the 
 evidence on both sides, and either convict the offender, or 
 make an order against him, or dismiss the case ; or 
 
 II. To hear the evidence and, if he thinks it sufficient to 
 put the offender on his trial, to commit him for trial at a 
 higher court. 
 
 Matters in Class I. come under the head of ** summary 
 convictions and orders" and, for sake of brevity, we shall 
 call these " summary matters." 
 
 Matters in Class II. are offences, prosecuted by "indict- 
 ment " and are called " indictable offences." 
 
'TT 
 
PART I. 
 SUMMARY MATTERS. 
 
 i 
 
 i 
 
•rrrrr 
 
PART I. 
 
 SUMMARY MATTERS. 
 
 In this Part we shall confine our attention to ** summary 
 matters." These are of two kinds : — 
 
 (a) Those commenced by an " information." 
 
 (b) Those commenced by a " complaint." 
 
 If judgment is given against the defendant in (a) it is 
 called a " conviction " ; in {!>) it is called an " order." 
 
 There is no distinct line dividing the matters in which a 
 *' conviction " may be made, from those in which there 
 may be an "order." Generally, however, a "complaint" 
 is where the complainant asks for an order on the defen- 
 dant to pay a sum of money or that he shall do some act or 
 refrain from doing something, as c.//. a servant complaining 
 of non-payment of wages. An information generally asks 
 that the offender be punished by fine or imprisonment or 
 both. 
 
 If the statute, ordinance or by-law says that the pro- 
 ceedings shall be commenced by an " information," then 
 the prosecutor is called the "informant" and the J. P. may 
 " convict " or make a " conviction " ; if, on the other 
 hand, it says that proceedings are to be " on complaint," 
 then the words " complainant " and " order " take the 
 place of " informant " and " conviction." The proceedings 
 in each case bear a strong resemblance to each other. The 
 dififerences will be noted as we proceed. 
 
 Let it be borne in mind that a J. P. never has power to 
 try a case summarily unless it has been given him ex- 
 pressly by 
 
 (1) Some Act of Parliament, 
 
 H 
 
fi^mmmmm 
 
 Mi' 
 
 8 
 
 When J. P. Can Tnj a Matter. 
 
 (2) Some Provincial Act or Territorial Ordinance, or 
 
 (3) Some by-law passed by a corporation having, itself, 
 
 the power to pass such a by-law. 
 
 Whenever, therefore, a J. P. is called upon to act sum- 
 marily, he must be satisfied that in one of the foregoing 
 ways he has been given the necessary jurisdiction. If the 
 law says that the matter is punishable on "summary con- 
 viction " the J. P. has summary jurisdiction. 
 
 There are two questions which the J. P. should be par- 
 ticular to have answered by the informant or complain- 
 ant. 
 
 1. Where was the oflfence, etc., committed? Because un- 
 
 less it was within the territorial jurisdiction of the 
 justice, he cannot deal with it summarily (K. S. C. 
 ch. 178, s. 5). 
 
 [Note. — Whenever in Part I. a section is referred to without mention- 
 ing' the chapter, I mean R. S. C. ch. 178, and the words " the territory " 
 will mean the district, county, etc., over which the justice's jurisdiction 
 extends. In the North-West Territories a justice's jurisdiction extends 
 over all the Territories.] 
 
 2. When was it committed ? Because proceedings must 
 
 be begun within a limited time. This time is fixed 
 either by the statute or law under which proceed- 
 ings are taken, or if not, then they must be begun 
 within six months except in the N. W. Territories 
 (and part of Saguenay), where the time is twelve 
 mouths (s. 11, as amended by ch. 45 of 1889). 
 The laying of the information or complaint within 
 the time is sufficient. 
 
 Having satisfied himself that he has jurisdiction to act 
 summarily, the next thing is to prepare an information or 
 complaint (See Form A. at end of ch. 178). By looking 
 at the statute which deals with the ofifence or matter he 
 
Preparing the Information, etc. 
 
 9 
 
 will see whether it is to be an " information " or a " com- 
 plaint." The Form (A) is adapted to either. 
 
 The important parts of this are, 
 
 (1) Name, residence and occupation of the prosecutor, 
 
 etc. 
 
 (2) Place where the offence, etc., was committed. 
 
 (3) Date of the laying of the information, etc. 
 
 (4) Name, residence and occupation of the defendant, or, 
 
 if his name is not known, state that fact and give 
 a description of him. 
 
 (6) Date or approximate date of the offence, etc. " On 
 or about the 10th of May, 1890," or " between 
 the 5th and 20th of May, 1890," will do, if 
 it shows that the proce^f^'ogs are begun in time. 
 
 (6) Place where offence, etc., committed — show that it is 
 
 within the territory of the J. P. 
 
 (7) Description of the offence or matter of complaint. 
 
 This part requires particular care. 
 
 It is generally sufficient to follow the language of the 
 statute, etc., which deals with the offence or matter, espe- 
 cially being careful to note such words as " unlawfully," 
 " wilfully," '• knowingly," etc., and to deny any exceptions 
 in the enacting clause. For example, if the Act is punish- 
 able only when done "without the license by law required" 
 it is necessary to state that it was done "without the 
 license, etc." In liquor prosecut-ons in the Territories it is 
 often necessary to charge the act as being done " without 
 the written permission of the Lieutenant-Governor, etc." 
 To charge that the defendant used " blasphemous lan- 
 guage " is not sufficient without mentioning the u-ords used. 
 So, to charge that he did " unlawfully and maliciously 
 
 
 Ikil 
 
rm^ 
 
 10 
 
 Description of Offence, etc. 
 
 commit damage to real and personal property of A. B." is 
 not sufficient without stating how it was done and what the 
 particular property was. It is well, therefore, in every case, 
 even though not always necessary, to add to the general 
 .statutory description of the offence, a description of how it 
 was done, or on what it was committed. The justice can 
 never seriously err hy stating more than may he necessary, 
 provided they are facts. A good test of a sufficient descrip- 
 tion may sometimes he had hy asking : " Does it contain 
 everything necessary to make out an offence, etc. ? " 
 *■ Suppose the defendant did all that is charged against 
 him, must ho necessarily he guilty ? " 
 
 For example, to charge one with "unlawfully and mali- 
 ciously destroying a tree belonging to A. B." would not be 
 sufficient under 11. S. C. ch. 168, s. 24, because that section 
 says the injury must be to the amount of " twenty-five 
 cents " at least, and unless this is stated, it might be quite 
 true that he had destroyed a tree and yet not be guilty of 
 any offence under section 24, if the tree was worth less 
 than twenty-five cents. 
 
 If the offence is one against a by-law it should be so 
 staged and should also show the municipality whose by-law 
 it is. 
 
 While it is necessary to be particular in describing the 
 offence, defects either of substance or form in the informa- 
 tion or complaint or in the summons, are not fatal (s. 28, 
 
 s.-s. 1). 
 
 A variance between an •* information " and the evidence 
 as to the time or place of the offence is not material, pro- 
 vided it appears that the proceedings were begun in time, 
 and that ths place is within the territory of the J. P. (s. 28, 
 
Description of Offence, etc 
 
 11 
 
 If it appears to the justice that the defendant has heen 
 deceived or misled hy the error he is entitled to an adjourn- 
 ment on such terms as seems proper (s. 28, s.-s 4). 
 
 But a conviction for an offence different from that in the 
 information and summons would he had. If in the course 
 of the trial it is found that the wrong kind of offence was 
 charged an amendment may be made and the information 
 re-sworn. The defendant would he entitled to an adjourn- 
 ment if he desired it. 
 
 The description of the offence ought in short to be 
 
 1. Distinct and free from ambiguity. 
 
 2. Should not be in the alternative, as " that he did a 
 
 certain thing or something else," " that he sold beer 
 or ale without license," but if only one offence is 
 charged it may be stated to have been done in dif- 
 ferent modes. See s. 107. 
 
 3. Must be for only one offence or matter (s. 26). 
 
 4. Such that if the charge be proved the defendant must 
 
 be guilty of an offence or matter within the justice's 
 jurisdiction. 
 
 If it is necessary to mention the ownership of any pro- 
 perty belonging to partners, joint tenants, etc., it is sufficient 
 to name one of such partners, etc., thus, "the property of 
 John Smith and others." If it is necessary to mention 
 the partners, etc., they may be leferred to in the same 
 way. Property of a municipal corporation or of the 
 inhabitants of any territorial division or place may be 
 
 described as " the property of the inhabitants of " 
 
 (8. 27). 
 
 Form A is adapted to be sworn to. This is not always 
 necessary. A " complaint " need not be either in writing 
 
II 
 
 Mi 
 
 12 
 
 Information — When on Oath, etc. 
 
 (s. 23), or on oath (s. 24), unless required to be so by the 
 statute under which proceedings are taken. Still there is 
 DO harm in having it both in writing and on oath, and it 
 is well, in general, to have it so. 
 
 An "information" must be in ivritinp, but need not be 
 on oath, unless the special Act requires it (s. 24), or unless 
 it is intended to issue a ivarrant in the first instance for 
 the arrest of the offender, in which case it must be on 
 oath (s. 18). 
 
 Who should lay the information, etc. ? 
 A complaint or information may be laid, in general, by 
 any one who knows the facts, but where the statute says 
 that it is to be by the " person aggrieved," that is, the one 
 who has suffered the injury, then no one else but him, or 
 some one on his behalf, can do so. But where the offence 
 is of a public character, and the damages are not to go to 
 the injured party, or where a conviction would not deprive 
 him of the right to sue for damages in a civil action, any 
 one may lay the information, etc. 
 
 It may also be laid by the counsel or attorney or other 
 authorized agent of the prosecutor or complainant (s. 26). 
 
 If the information is for common assault the justice 
 cannot try the case summaril}', unless the prosecutor 
 requests him to do so (s. 73), and this request should, for 
 precaution's sake, be mentioned in the information, thus : 
 " and the informant prays that the justice may proceed 
 summarily," or words of similar effect. 
 
 The information or complaint being now laid, the justice 
 must next consider " Is the case one which he can try alone 
 or only with the assistance of fir»other justice ? Unless the 
 statute dealing with the offence requires the trial to be before 
 two justices, onf., alone, hfts power to try it (s. 5). In all 
 
What One J. P. Mtnj Do. Smnmons 
 
 13 
 
 cases, however, even where the trial must be before two jus- 
 tices, one may do all things before the trial or after the con- 
 viction or order has been signed, such as taking the infor- 
 mation, etc , issuing the summons or warrant either for 
 defendant or the witnesses and all necessary warrants of 
 distress and commitment (s. 6), except in cases under the 
 Scott Act, wherever that Act is in force, where by statute it 
 is necessary that two justices should be present when infor- 
 mation is laid, though the summons need be signed by only 
 one. 
 
 The next step is to secure the attendance of the oflfender. 
 
 If it is likely that he will obey a summons, that may now 
 be issued (Form B. s. 13). The words in that Form : — 
 " before me or such justice or justices ... as shall 
 then be there," are inserted in case, owing to illness or other 
 cause the justice who issues the summons should not be 
 there. Section 8 provides that the justice who acts before 
 or after the trial need not be the justice, or one of the jus- 
 tices, present at the trial. 
 
 In cases begun by " complaint " a summons must first be 
 issued for the defendant, but where an information is laid, 
 the justice may, if he thinks fit, issue a warrant in the first 
 instance, but in this case it is necessary that the matter of 
 the information be " substantiated upon oath " to his satis- 
 faction, so that if the information was not under oath, the 
 truth of it must now be sworn to (s. 18). A summons or 
 warrant should be under the hand and seal of the J. P., but 
 the absence of a seal will not invalidate the process if it 
 purports to be " under the hand and seal " of the J. P. and 
 he may put on a seal at any time (s. 108). 
 
 This warrant will be in the Form D., and the constable 
 executing it must serve each person arrested with a copy 
 
14 
 
 or Warrant — Service. 
 
 thereof (s. 18). Every warrant must be sinned and scaled 
 by the justice and may be directed as provided in section 
 19. This section also directs what the warrant shall con- 
 tain, and the Forms D and C in the schedule to chapter 178, 
 if attention is paid to the wording of them, are so plain as 
 to need no explanation. 
 
 We will assume that the justice has chosen to issue l 
 summons ; the next thing is to have it served. 
 
 This may be done by *' a constable or peace officer or 
 other person to whom it is delivered," in other words, by 
 anij one to whom the justice hands it for that purpose 
 (s. 14). 
 
 The mode of service is, 
 
 (1) To deliver it personally fo the defendant, 
 
 (2) Or to leave it with some one for him at his last or 
 
 most usual place of abode (s. 14). 
 
 If the service is not persondl, the nature of the summons 
 should be explained to the person with whom it is left. 
 The Act says that " such summons " shall be served by 
 delivery of "the same" so that strictly a "copy" would 
 not be sufficient, but it has been recently held, in Me Far- 
 lane v. The Queen, 10 Supreme Cfc. Hep. that either a copy 
 or a duplicate may be served. 
 
 The summons, we will suppose, lias now been served per- 
 sonally, and the person who served it is present (as his dut}' 
 is, s. 15) at the place and time named in the summons. If 
 the defendant does not then appear either personalhf or by 
 counsel or attorney (s. 42), the person, who served the sum- 
 mons, proves on oath (s. 17) that the summons was duly 
 served, a reasonable time, in the opinion of the justice 
 before the time for appearing; showing " the manner " of 
 
When Warrant May hsue. 
 
 15 
 
 the service, i.e., whether personal or by leaving it with 
 some one for him, then, if the matter of the information is 
 substantiated on oath to his satisfaction, the justice may 
 issue a warrant (Form C, s. 17). If the information was 
 sworn to in the first instance, it would seem unnecessary to 
 swear to the truth of it again, yet, as the section is worded, 
 it appears that such is the intention of the statute and the 
 safer course is to act accordingly. What is " a reasonable 
 time " is a matter for the justice and should be construed 
 with due regard for all the circumstances. The justice is, 
 however, not bound to issue a warrant and adjourn until 
 the defendant is brought in. He may proceed with the 
 case in the absence of the defendant (s. 39), and dispose of 
 it just as if he had appeared. 
 
 Before proceeding in this way, however, the service and 
 how it was served, should be sworn to and the justice should 
 be satisfied that a reasonable time has elapsed since the 
 service to enable the defendant to obey it. If the service 
 was not personal, the evidence required to satisfy him must 
 be stronger than where it was served personally. He should 
 have "strong grounds for believing that the summons has 
 come to the defendant (or to his knowledge) and that lie is 
 wilfully disobeying it." (Rco- v. Smith, L. R. 10 Q. B. 
 604 ; ii. v. Mabee, 17 0. R. ; Head v. Hunter, 8 C. L. T. 428.) 
 In case of doubt the J. P. should take the other course of 
 issuing a warrant, or he might take the still milder course 
 of issuing another summons. 
 
 Let us suppose that he issues a ivarrant (C). Section 19 
 shows how this may be directed. Sections 20, 21 and 22 
 deal with the mode of executing it. The warrant is not 
 made returnable (like a summons) at any particular time 
 and may therefore be executed at any time, remaining in 
 
FT 
 
 16 
 
 Executing <i Warrant. 
 
 force until executed (s. 20). The arrest may take place 
 anywhere in the territory of the justice, or, in ca.se of fresh 
 pursuit, within seven miles across the border, but beyond 
 that distance, or if not on fresh pursuit, the warrant must 
 be ** backed " before it can be executed. " J3acking" means 
 the placing on the back of the warrant an endorsement, in 
 the Form N 8, and is obtained by the constable who has 
 the warrant going before a justice of such other territory 
 and making oath to the signature of the justice who issued 
 the warrant. This endorsement authorizes the constable 
 aforesaid and all other persons to whom it was 'Originally 
 directed and all peace officers and constablen in the juris- 
 diction of the justice who backs it, to execute the same by 
 arresting the defendant and taking him before the justice 
 who issued the warrant or some other justice having the 
 same juris iction. " Backing " will not be necessary in the 
 Territories unless the warrant is to be executed ni anothi^r 
 Province, because the J. P. has jurisdiction in every part 
 of the Territories. 
 
 When the defendant has been arrested under warrant 
 (either C or D) he is brought, as soon as conveniently pos- 
 sible, before the justice who has charge of the case or some 
 other justice for the same territory (s. 40). 
 
 Now, as the time of the prisoner's arrival is necessarily 
 uncertain, and the prosecutor must have reasonable notice 
 to enable him to be present with his witnesses, what is to 
 be done with the prisoner in the meantime ? One of three 
 courses is open : (1) the justice may by warrant (Form F) 
 commit him to jail, or (2) he may verbally (without warrant) 
 hand him over to the custody of the constable who brought 
 him, or (3) to such other safe custody as he deems fit and 
 in each case must fix a time when the prisoner is to be 
 
Adjouruments — Wifncsscs. 
 
 17 
 
 brought before him, but this munt not be more than a week 
 off (8. 40). A committal which did not fix a time for bring- 
 ing up the prisoner would be bad. Due notice of tliis time 
 must be given to the prosecutor. 
 
 If on the day fixed tlio jiintice finds it necessary to re- 
 mand the defendant again he may do so, but not for a 
 longer period than a week. 
 
 Preparations must now be made for the trial and an 
 important item is the procuring of the attendance of 
 u'itnesaea. 
 
 WITNESSES. 
 
 These may come voluntarily at the request of the parties 
 and in that case the aid of the J. P. is not required. 
 
 If, however, either party has reason to fear that the wit- 
 nesses will not voluntarily attend, the J. P. may issue a 
 summons (s. 29, Form E 1) or, in certain cases, a warrant 
 (s. 31, E 3) in the first instance. 
 
 To obtain a summons it is necessary that it should be 
 sworn by a competent witness (s. 29) that the proposed 
 witnesses 
 
 (1) Are likely to give material evidence on behalf of the 
 
 party desiring them ; 
 
 (2) That tney will not voluntarily appear as witnesses 
 
 at the time and place fixed. 
 
 If a warrant in the first instance is desired, instead of a 
 summons, in addition to the foregoing, it must be sworn 
 that " it is probable that the witness will not attend with- 
 out being compelled." The J. P. may then issue warrant 
 E 3, (s. 31, as amended by ch. 45 of 1888) which may 
 be executed anywhere in Canada by any person to whom it 
 
 is delivered. 
 
 mcq. B.C. — 2 
 
rr 
 
 \H 
 
 1 1 'KiK'sscs — / )i's(>l>i'i/in(/ Sii HI nions. 
 
 t 
 
 U 
 
 Hor\'wo of a Hiimiitonx on u wiliuiHH is tilVcclcd in tlio Hiuno 
 wiiyH iiH on a (Icfi'ndiini iind nuiy bo hcivoiI anywlicro in 
 (lunula (oh. 15 of IHHH). 
 
 If a wiinosH duly norvt^d with a HinninonH, riifiiHcH or 
 no^ltH'ts to ohoy it. and no juHt ox(Miho Ih ollVrcd for Ihh diw- 
 ohotlionoo, thiMi on proof ou onth that the HUtninonH wan 
 dniy Hovvrd, a irnnuint, in I'^orin A (eh. 15 of IHHH) may 
 issuo, nndov whicli \\o may he iiroii}j;ht not only 'o jj;iv() ovi- 
 donoo hut aluo to annwor for Iuh continipt in disolmyin}.; tho 
 summons. Whon approlumdod ho nuiy ho dotainod (1) ho- 
 foro thojustioo, or (2) in f,'iud, or {l\) in tho ountody of tho 
 oonstuhlo, or (4) ho nuiy ho lot go on HM'oj^ni/.anco, with or 
 without surotii'H, to appt^ar iih a witnoHs and to aiiHwor for 
 his oontompt. Sootion IK) as amondod hy oh. 15 of IHHH, 
 says that for tho oont»Mupt ho may ho punishod by hoiu}^ 
 ordorod ** to pny tho oosts inoidont to tho siU'vioo of tho 
 sunnnonsand warrant and (tf his dott>ntion in i'ustody " hut 
 is silent as to any tine or imprinoNnicHi thorofor, whoroas tho 
 Form (li) {^ivon providos, in luldition.for a Ihie or iniprison- 
 mont or both without, howovor, indioatinjj; tho amount of 
 oithor. That \mn\i, tho caso the justioo should only (at 
 most) impose the oosts in tho sootion mtMitioned. 
 
 l\vcn. when tho witness has appeared in ohodiono;* to a 
 summons or warrant ho may rofusi* to bo sworn or {»ivo 
 eviilence. In either ease. In tho absonoe of a HulVioiont 
 excuse, he may be oommittcd to gaol for a period not 
 exceeding thirty days unless he should in the meantime 
 Consent to be e "orn or to answer, etc., (s. 8*2 as amended 
 bv cb. 45, 1888;. 
 
 This section, however, refers only to witnesses who 
 appear on summons or wanant, so that witnesses attending 
 voluntarily are not within its provisions. They should be 
 
Coiu/ir/ni/ WlhifHHi'H - Who nrr f 
 
 19 
 
 Ml 
 
 (ii-Hl, H(irv(-(l \vil,li M, HiimiiiniiH fitid Uicn if tlicy r(!fiiHr-(l to \m 
 Hworii, did., Mi(.y could \h\ Hciit to ;^'(i(.l. 
 
 Wli(» aro (•(uii|)(iI,()m(. witnoHHOH V 
 
 ThiH ((ii(!H(,i()ii iiiiiy (ippropriatcly bo aiiHwnnul \mv,i\y honi. 
 Tlio riihi \h I,Ii)i,(, nil pf.rHoiiH uro n„iiiicl,;ti (Uial, ih, friay bo 
 rocoivcd m witocHHcH), and compdjlablo, ii.,:, umy bo I'orood 
 to ^ivo ovid(!iic,(!). 
 
 Tbo principal oxccpiioiiH urc aH folIowH : 
 
 J. I'ci-HoiiH vvlio (Voiii oxtrorno yimth, (Hhvuhc. of inind or 
 oilior caiiHo n,r(!, in |,lio rnaKiMl.ratfi'K yuh^nw.ni, 
 iii(;a|»al'l(! of iinilrvHlnndivil tlic ol)li{,;atioMH of an 
 oii,tli or of /v77*//,77///7 (,li(. matter in (jiicHtiori or of 
 inidcrHlandiM-,' tlio (inrHliouH or of ^ivin« nilinno/, 
 (iiiHirrrH. An (jxcopi.ion to tbin nilo in created by 
 Htdliitd, cli. !J7, H. II, of IH'.H), in (;aH(!H of offj.ncoH 
 a<,'ainHt j^irln undor Hcction :{!) or 40 of cb. 102, 
 it. S. (], 
 
 2. in criminal prorujodint^'H, 
 
 A. Tbo defendant iH incomjx'tont, oxcopt wboro by 
 
 Htatiit(t b(! in made, oitlior 
 
 ('0 Compctont to f^ivo ovidonco on biH own bebaif 
 but cannot b(! conipcijicd to ^ivo ovid(;nc(!, c.ff.^ 
 Common aH^aiilt, cli. Ill, U. S. C, h. 210.' 
 Seduction, cb. 1,07, li. S. C, h. i'>, hh. 2. 
 \Vif(! dcHcrtion, cb. 102, Jl. S. C, h. VJ. 
 I'cMce near public vvorlcH, cb. 151, li. S. C, h. 22. 
 Feigned nuirrin-e, cb. 102, Ji. S. C, «. 2. or 
 {!>) Compotont and compellabb!, 
 c.f/., Canada Temporanco Act. 
 
 B. Tbe wife or buHl)and of defendant is incompetent 
 
 e.xcept, 
 
lii 
 
 20 
 
 Witnesses — Covipetencij — Nnviher. 
 
 ff 
 
 a 
 
 i 
 
 r 
 
 (a) Where the charge is one of violence committed 
 by the prisoner on the wife or husband. 
 
 {b) Where by statute she or he is made, 
 
 (1) Competent to give evidence on behalf of defend- 
 
 ant, e.(j., ch. 151, s. 22, supra. 
 Common assault, ch. 174, s. 216. 
 Bigamy, etc., ch. 37, s. 9 (of 1890). 
 
 (2) Competent to give evidence for or against him, 
 
 ch. 162, s. 19, wife desertion (as to desertion 
 but not as to fact of the marriage). 
 
 (3) Competent and compellable, 
 
 e.g., under Canada Temperance A.ct. 
 
 Where the charge is not a crime, e.g., where the justice 
 has power only to make an order, as to pay money, etc., 
 the provisions A and B do not apply, so that the defen- 
 dant and the wife or husband are competent witnesses in 
 such cases. 
 
 The fact that a witness is a criminal or has an interest 
 in the result of the trial is no reason for shutting out his 
 testimony, ch. 174, ss. 214, 215. It maj', however, afifect 
 the weight of his evidence. 
 
 NUMBER OF WITNESSES. 
 
 As a rule one witness is sufficient. 
 But in the following cases such evidence must be cor- 
 roborated by other legal evidence. 
 
 1. Perjury. 
 
 2. Seduction, B. S. C, ch. 157, s. 6. 
 
 3. Forgery, if the witness is the person interested in 
 
 respect of the forged document, ch. 174, s. 218. 
 
 4. Procuring feigned marriages, ch. 161, s. 2. 
 
The Trial — When tivo J.P.'s necessary. 21 
 
 5. Treason — requires two witnesses. 
 
 6. Where young children are permitted to give evidence 
 
 without being sworn, ch. 37, s. 11, (1890). 
 
 We will assume that we have now reached the time and 
 place fixed for the trial. 
 
 As we have already pointed out, a single J. P. can try 
 any case except where the special Act, under which the 
 
 -1 
 
 ii- 
 
 EKKA^^A. 
 
 Page 20, 7th line from top, for s. i), read b. 11 . 
 " 21, Srd " " B. 11, read a. 13. 
 
 " 24, 10th " " a. 11, road s. 13. 
 
 a single J. P. 
 
 He may permit another or other justices to sit with him 
 and take part in the trial, and in that case it requires a 
 majority of the magistrates trying the case to agree upon a 
 decision. If they are cqudlbf dicided, no decision can be 
 given and the case must be dismissed. 
 
 It is not necessary that the J. P. who took the informa- 
 tion or complaint shall be present at the trial (s. 8). 
 
 The room or place of trial must be an open Court to which 
 the public may have access as far as its size will permit 
 (s. 33). 
 
 If the defendant does not appear personally or by his 
 counsel or attorney, the justice may either (1) adjourn for 
 the purpose of issuing a warrant for his attendance as 
 alreaa^ inentioned, (or if the service was not properly made. 
 
20 Witnesses — Competency — Number. 
 
 (a) Where the charge is one of violence committed 
 by the prisoner on the wife or husband. 
 
 (6) Where by statute she or he is made, 
 
 (1) Competent to give evidence on behalf of defend- 
 
 ant, e.g., ch. 151, s. 22, supra. 
 Common assault, ch. 174, s. 216. 
 Bigamy, etc., ch. 37, s. 9 (of 1890). 
 
 (2) Competent to give evidence for or against him, 
 
 ch. 162, s. 19, wife desertion (a^ *■- ^ 
 
 I \ 
 
 J.IM lact that a witness is a criminal or has an interest 
 in the result of the trial is no reason for shutting out his 
 testimony, ch. 174, ss. 214, 215. It may, however, affect 
 the weight of his evidence. 
 
 NUMBER OF WITNESSES. 
 
 As a rule one witness is sufficient. 
 But in the following cases such evidence must be cor- 
 roborated by other legal evidence. 
 
 1. Perjury. 
 
 2. Seduction, E. S. C, ch. 157, s. 6. 
 
 3. Forgery, if the witness is the person interested in 
 
 respect of the forged document, ch. 174, s. 218. 
 
 4. Procuring feigned marriages, ch. 161, s. 2. 
 
The Trial — When two J.P.'s necessary. 21 
 
 5. Treason — requires two witnesses. 
 
 6. Where young children are permitted to give evidence 
 
 without being sworn, ch. 37, s. 11, (1890). 
 
 We will assume that we have now reached the time and 
 p^ace fixed for the trial. 
 
 As we have already pointed out, a single J. P. can try 
 any case except where the special Act, under which the 
 charge is laid, requires that the trial be before two justices, 
 
 (s. 5). 
 
 For example: — A charge of carrying a bowie knife is 
 prosecuted under ch. 148, R. S. C, and there it is provided 
 that it must be " before two Justices of the Peace." 
 
 Where two justices are necessary, they must both be pre- 
 sent together during the whole of the trial (s. 9). 
 
 We will suppose that the case in hand is one triable by 
 a single J. P. 
 
 He may permit another or other justices to sit with him 
 and take part in the trial, and in that case it requires a 
 majority of the magistrates trying the case to agree upon a 
 decision. If they are equallg divided, no decision can be 
 given and the case must be dismissed. 
 
 It is not necessary that the J. P. who took the informa- 
 tion or complaint shall be present at the trial (s. 8). 
 
 The room or place of trial must be an open Court to which 
 the public may have access as far as its size will permit 
 (8. 33). 
 
 If the defendant does not appear personally or by his 
 counsel or attorney, the justice may either (1) adjourn for 
 the purpose of issuing a warrant for his attendance as 
 already mentioned, (or if the service was not properly made. 
 
li 
 
 It I 
 
 s 
 
 I 
 
 'i: t 
 
 22 Adjournments — Appearance of Defendant. 
 
 in order that he may be properly served), or (2) he may pro- 
 ceed with the trial just as if the defendant had personally 
 appeared, observing however, the precautions already men- 
 tioned (p. 15) as to proof of service and the lapse of reason- 
 able time. 
 
 If all parties are present, personally or by their lawyers, 
 and ready, the trial may be at or.ce proceeded with (s. 42), 
 though the justice may adjourn (s. 48) for some sufficient 
 reason of his own. 
 
 Adjournments must not exceed one week, e.r,. from Mon- 
 day at any hour till not later than the following Monday at 
 any hour, even though it bo ^ter in the day, but, not even 
 by conse7it of all Dartie^-, '""^ adjournment exceed one 
 
 week. {Reg. v. French, ^o yj. i^. 80.) 
 
 If either party is not V' .idy, owing to absence of witnesses 
 or other good cause, such as huine obiect mi the proceedings 
 (s. 28), upon application to the justice he may adjourn the 
 trial to some future day upon such terms as he deems just 
 and reasonable, e.g. the paying of the extra expense for wit- 
 nesses to which the other side is thus put. If the defen- 
 dant has been misled by the summons, e.g. as to the nature 
 of the charge, he should be allowed an adjournment without 
 terms being imposed on him. 
 
 If the defendant appears, or if he is brought by warrant 
 and the prosecutor has had due notice of the day of trial, 
 then if the prosecutor or complainant does not appear, per- 
 sonally or by his lawyer, the justice shall dismiss the case 
 unless for some reason he thinks proper to adjourn (s. 41) 
 upon such terms as he thinks fit. 
 
 Whenever an adjournment takes place, either before or 
 during the hearing of the case, then, if at the time and 
 place appointed, either or both of the parties fail to appear, 
 
 Hi 
 
 if 
 
Non-appearance of either Party. 
 
 23 
 
 the justice may nevertheless proceed with the case just as 
 if all were present or, if it is the prosecutor who fails to ap- 
 pear, he may dismiss the case with or without costs, but if 
 it is the defendant who is absent, instead of proceeding he 
 may again adjourn and issue a warrant for his arrest (s. 51, 
 
 8.-S. 2). 
 
 During an adjournment what becomes of the defendant ? 
 Section 51 provides that he may be 
 
 (1) Let go at large, 
 
 (2) Or committed by warrant (G) to gaol or to such other 
 
 safe custody as is fit. 
 
 (3) Or let out on recognizance (H), with or without sure- 
 
 ties, as the justice decides. 
 
 THE TRIAL. 
 
 Let us suppose that all parties are present and ready and 
 that the trial has begun. The constable will give notice 
 that the Court is open and see that order is preserved. 
 
 If the defendant is personally present the first step is to 
 read to him the information or state its substance (s. 48) 
 and he is asked if he has any cause to show why he should 
 not be convicted or an order made against him, in other 
 -words, " Has he any defence ?" If he admits the truth of 
 the information or complaint and shows no sufficient 
 "cause" {i. e. reason) why judgment should not be given 
 against him, the justice may convict or make an order. 
 
 Now what does this "showing cause " mean when he ad- 
 mits the truth of the charge ? 
 
 It may be that the complaint or information states only 
 the truth and yet it may not amount to an ofifence or mat- 
 ter triable by a justice or may not be contrary to any law. 
 
24 Evidence — On oath, etc. — Form of. 
 
 
 I 
 
 i: ' 
 
 i 
 
 ii ; 
 
 or the defendant may be able to show that be was justified 
 in doing what is complained of, e. g. that he did it in self 
 defence, or because he claims title to some property with 
 respect to which the acts complained of were done. Admit- 
 ting the truth of the charge simply saves the prosecutor 
 the trouble of proving it and the defendant may at once go 
 into his defence. 
 
 If, however, as most frequently happens, the defendant 
 does not admit the truth of the charge, the next step is for 
 the informant or complainant to call his witnesses (includ- 
 ing himself if he chooses) to give evidence. 
 
 Evidence cannot be taken by affidavit. Witnesses must 
 appear in person and give their testimony orally. 
 
 A witness must first be sworn on the New Testament (if 
 he is a Christian) holding the book in his right hand while 
 the oath is administered (except under ch. 37, s. 11, 1890, 
 in case of young children). The form of oath usually em- 
 ployed is as follows : The justice says to the witness, " The 
 evidence which you shall give to the Court touching the 
 matter of this information (or complaint, as the case may 
 be) shall be the truth, the whole truth, and nothing but the 
 truth. So help you God! " and then the witness kisses the 
 book. Quakers and persons of other forms of religious 
 belief who satisfy the justice that they have scruples against 
 taking an oath are permitted to " affirm " in the following 
 form : — "I, (A.B.) do solemnly, sincerely and truly declare 
 and affirm that the evidence which I shall give shall be the 
 truth, the whole truth, and nothing but the truth," and the 
 witness is not required to kiss the book (ch. 174 R. S. C.^ 
 8. 219). 
 
 The prosecutor (or complainant) now calls his first wit- 
 ness, and examines him, that is, puts such questions to him 
 
Examining ivitnesses — Some rules. 
 
 25 
 
 as he thinks proper (subject as hereinafter explained), or he 
 may have this examination conducted by his lawyer (s. 35). 
 
 There are certain rules governing the examination of 
 witnesses which are here stated : 
 
 1. A party must not (in general) "lead" his own witness^ 
 i.e.y he must not put his questions in such a form as to 
 suggest to the witness the answer that is desired, Thus, 
 in an assault case the question "Did you see the defendant 
 strike me on the head with his stick?" is a "leading" 
 question and not allowable. So, if the defendant should 
 ask one of his witnesses " Did you not see the prosecutor 
 strike me first ?" Both of these questions show that the 
 answer "Yes " is expected and a weak or dishonest witness 
 is thus tempted to give the kind of answer which he knows 
 will please the side which calls him. The justice, however,, 
 has a discretion to permit a " leading " question if he thinks 
 proper. On cross-examination these questions would, as a 
 rule, be allowable unless it appeared to the justice that the 
 witness though called by one side, turns out to be really a 
 too willing witness for the other side. 
 
 2. The evidence of a witness must be confined to factsi 
 material to the question in dispute, but on cross-examina- 
 tion this rule is not enforced where the object is to test the 
 truthfulness of the witness, or to shake his credit by injuring 
 his character, because while he may have a well-planned 
 but untruthful story as to the matters directly in issue yet 
 if led out from the beaten path into byways and sidetracks 
 he is more likely to expose himself to detection in any 
 falsehoods. 
 
 3. Opinions of the witness are not evidence, unless in the 
 case of an expert or skilled witness, e. g. a medical man» 
 whose opinion may be evidence. 
 
 iH 
 
,1 1: 
 
 26 
 
 Cross-examining witnesses — Bales foi 
 
 iii^ 
 
 4. A witness mast not state the contents of a written or 
 printed paper unless it is first proved that it is lost or des- 
 troyed, or is in the possession of the opi)osite party who 
 improperly refuses to produce it after beinf:; properly noti- 
 fied to do so. The best proof of the contents of a document 
 is the document itself and even a copi/, no matter how care- 
 fully examined, will not be evidence except where the witness 
 would be allowed to tell its contents. 
 
 5. " Hearsay " is not admissible, i.e., a witness must 
 not tell what he has been told by some one, unless it was 
 so told by the party against whom it is offered, or was told 
 while such party was present and within hearing distance. 
 As to confessions by accused persons, see post p. G'2. 
 
 A witness is not bound to answer questions, if the 
 answer would tend to convict him of a crime. 
 
 We will now proceed with the examination of the first 
 witness. The answers must be taken down in writing 
 {Reg V. Flanigan, 32 Q. B. 593-9). 
 
 As soon as the prosecutor is through with the witness, 
 the defendant (or his lawyer) may " cross-examine " him, 
 either upon the matters on which he has already given 
 evidence or on any other matter connected with the ques- 
 tion in dispute, or, (as we have seen) on matters not so 
 connected, where the object is to test his truthfulness, etc. 
 
 At the end of the cross-examination, the prosecutor may 
 " re-examine " him, but only as to matters on which he has 
 been cross-examined, and not as to matters which should 
 have been asked in the examination in chief. But the 
 justice may allow any questions if he sees fit and he 
 usually does so where, through some oversight, a material 
 question was omitted in the first examination. 
 
Proving ivritiiKjs — Defence — lie-examination. 27 
 
 el ;, '1 " 
 
 Documents may be proved by some one who knows the 
 writing or the signature, or who saw the document exe- 
 cuted or used. When so proved they are handed in to the 
 justice as part of the evidence. 
 
 DEFENCE. 
 
 When the evidence for the prosecutor or complainant is 
 all in it is now the defendant's turn. 
 
 Before calling witnesses he may address the magistrate 
 and argue that the case has not been proved, even admit- 
 ting the truth of all that has been given in evidence, or 
 that the evidence is so contradictory or otherwise of such a 
 character as not to be deseiving of belief. The prosecutor 
 or his lawyer may reply to this argument and the justice 
 will either dismiss the case or proceed, as he thinks lit. 
 
 If he refuses to dismiss it, the defendant or his lawver 
 (s. 84) may now call witnesses and the opposite party may 
 cross-examine them^ the same rules applying as before. 
 
 W^hen all the evidence for the defendant is in, the prose- 
 cutor or complainant may call witnesses in reply, but not 
 for the purpose of strenf/thening his original casj nor, in 
 general, to prove anything that it was his duty to have 
 proved at first, but only to explain the evidence first oft'ered 
 which by reason of the defendant's evidence seems to 
 require explanation, or to rebut any new facts set up by 
 defendant. 
 
 If, however, the defendant called no witnesses or put in 
 no evidence, except as to his general good character, no 
 evidence in reply is admissible (s. 45). 
 
 It is not unusual at this stage for the defendant or his 
 lawj'er to again address the justice by way of comment on 
 defendant's evidence, and for the other side to reply, and 
 
28 
 
 Nega 1 1 v i n g Except io ns — Dec is io n . 
 
 i ^ 
 
 comment on the evidence given in reply but this is not 
 authorized by the Act (a. 40), althougii the justice may, of 
 course, permit them to do so if he pleases. 
 
 It will be remembered that in dealing with the mode of 
 describing offences, etc., it was pointed out that any excep- 
 tions, exemptions, provisoes or conditions in the statute, 
 under which the charge is made, should bo ner/ntired (i.e., 
 denied). 
 
 It is not necessary, however, for tho prosecutor to prove 
 these denials : e.ff., if the charge is for selling li(iuor 
 " without a license," it was sufficient to have stated in the 
 information and summons that it was so done " without a 
 license," and it is not necessary to prove that tho defen- 
 dant had no license ; it is his duty to prove, if ho can, that 
 he hid one. 
 
 THE DECISION. 
 
 Having heard all that the parties wish to offer, the jus- 
 tice may now consider his decision (s. 52). He is not 
 required to do this at once. He may adjourn for the pur- 
 pose of preparinj^ his judgment. If so, 
 
 1. He must tix a time and place for delivering judgment, 
 giving the parties notice thereof. 
 
 a. The adjournment is not limited, like adjournments 
 diu'inff the trial, to one week, but may be for a longer 
 period. {Ren. v. Hall, 12 P. R. 142 ; lieg. v. Alex- 
 ander, 18 0. R. 169.) 
 
 3. Or he may decide to convict or make an order, and ad- 
 journ to make up his mind as to the punishment, 
 etc. 
 
 After fixing a time he must not change it and give judg- 
 ment on some other day, without attending on the day first 
 
 lilt 
 
Minute of Ju(l<jni('nt — ]){s}ui.s.wl — Condition. 2*J 
 
 named and a^ain adjourniuf^ ref^ularly : a punislinient im- 
 posed in tliG absence of tho defendant because of an im- 
 proper cban^'e in tbe day would bo bad, tbouj^b if date 
 changed and defendant knew of it and was present, the 
 irregularity would be cured. 
 
 If the defendant is in custody it is obvious that justice 
 requires that as little delay as possible should take place in 
 rendering judgment. 
 
 If tbe decision is in favour of the (U fendant, he dismisses 
 the information or complaint, with or without costs, as he 
 sees fit (s. 59) and, if so required, makes an order of dis- 
 missal (s. 66, Form L), and gives the defendant a certificate 
 of dismissal (Form M), which is a protection to the defendant 
 against any further summary proceedings for the same 
 matter. If costa are allowed they must be calculated and 
 the amount mentioned in the order of dismissal (s. 60). 
 
 If the decision is against the defendant, the justice first 
 makes a " minute " or memorandum thereof (s. 53) and 
 from this he can at leisure prepare a conviction or order. 
 
 The " minute " is merely a short statement in writing in 
 any form of words, but giving in fall the substance of his 
 judgment, because the conviction or order, which is the 
 formal record, is to be based on this *' minute " and must 
 not differ from it or it will be liable to be quashed. The 
 following would be a sufficient minute : — " I find the de- 
 fendant guilty of the assault herein charged against him 
 and adjudge him to pay a fine of §10 and costs $3.50." 
 
 In case of an order it is necessary before issuing a war- 
 rant of distress or of commitment to serve a copy of this 
 " minute " on the defendant and such copy is to be no part 
 of the warrant (s. 57). It is not necessary to do this in case 
 of a conviction. 
 
 i . ! 
 
30 
 
 Jo in t Offc ncc'n — Fir.s I OJfc iicch — (yos/s . 
 
 In Honio (!(iH(?9 {<;.<!. cli. 1(58, h. 59) tlio jiiHticc has powor 
 to irnposo a penalty wliicjh incliuloH tlio dama^oH HUHtainod 
 by tlio prosecutor. Now, if Hovoral porHonH joined in the 
 conimiHHion of an ofl'enco of tliin kind and (!ach \h ordered 
 to pay a penalty including; the daniaj^eH, it mif,'lit happen 
 that the prosecutor would get paid Heveral times over the 
 amount of his Iohh. To prevent this, section 54 provides 
 that in sucli ease the agf^rieved party shall be paid only the 
 amount of his damages as ascertained by the justice and 
 the costs (if any) ordered, and the residue of the penalties 
 is to be applied as other penalties are. 
 
 In cases under the Acts respecting larceny, malicious 
 injury to property and the protection of the property of 
 seamen in tiie navy, if it is a Jirnt olTencc, the justice may 
 discharge the otYender on his making satisfaction to the 
 aggrieved party for the danuiges and costs, or either of 
 them, as fixed by the justice. This relieves the defendant 
 from any further penalty (a. 55). 
 
 COSTS. 
 
 The justice has power to award costs in nil cdnea to be paid 
 by the unsuccessfitl party. It is entirely a matter of dis- 
 cretion. If he decides to allow costs he must ascertain and 
 state the amount in the conviction or order, or order of dis- 
 missal. These costs in proceedings under Dominion Stat- 
 utes aie fixed by Tariff W to be found at end of chapter 45, 
 Dominion Statutes for 1889, and no costs but those there 
 provided can be allowed in prosecutions under ch. 178, li. 
 S. C. It will be observed that Tariff W does not provide for 
 payment of witnesses, consequently in proceedings for mat- 
 ters under a Dominion Statute witness fees cannot be allowed. 
 In the Territories, in proceedings under Territorial Ordi- 
 
Enforciiif/ JiuJfjment — JJistrcsH, etc. 31 
 
 nancoH, costs will bo according to chapter 42, liov. Ordi- 
 nances. 
 
 We will suppose tliat the defendant han been found 
 guilty and sentenced to a line of $10 and costs amounting 
 to $8.50. 
 
 ENFORCING PAYMENT, ETC. 
 
 The next step is to enforce obedience to the decision. 
 This brings us to the most difficult part of our journey, a 
 bit of road that branches out in various directions and re- 
 quires the most careful and deliberate perusal of the sign- 
 boards and directions provided in the Act or law under 
 which proceedings were taken and in certain sections of 
 chapter 178, 11. S. C. 
 
 The first thing to look at is the particular Act or law 
 creating the offence, etc., for the purpose of seeing whether 
 it provides a mode of enforcing obedience — that is — pay- 
 ment. 
 
 The usual modes— in fact the only ones now employed — 
 are Distress and liiqnisonmcnt, with or without hard 
 labour. 
 
 " Imprisonment " may be directed either (1) as a mode 
 of punishment for the offence, or (2) as a mode of enforcing 
 payment. In the former case the defendant must go to 
 gaol and stay there for the period ordered ; in the latter, he 
 may pay and thus avoid punishment, or if he does not pay 
 and is sent to gaol for not doing so he can get out before 
 the end of the time as soon as he pays (s. 98j. 
 
 This distinction is important and should be kept dis- 
 tinctly in mind. 
 
 If the Act dealing with the offence or matter itself pro- 
 vides that, if the money is not paid, the offender shall be 
 
! 
 
 ' :r 
 
 
 
 
 
 
 ( '.: ' 
 
 J ^:^^ ! 
 
 ' 
 
 r [' ' 
 
 >• 
 
 1 
 
 '* 
 
 j 
 
 1 
 
 i 
 
 tl 
 
 b' I 
 
 «2 
 
 Contents of Conviction, Order, etc. 
 
 imprisoned, and if it makes no mention of distress then 
 imprisonment is the only mode of enforcing payment. 
 
 If it says that the money may he levied hy distress and 
 sale of the defendant's goods and that if there are no suffi- 
 cient goods he may be imprisoned, then the conviction or 
 order may direct accordingly and sections 62, G3, 64, 65 
 and 66 provide for the procedure. 
 
 If it merely directs distress and mentions no further 
 remedy then section 67 must be looked at. 
 
 If it gives no remedy or mode of enforcing payment then 
 sections 62 and 67 apply. Sections 60 to 70 are devoted to 
 the various methods of enforcing payment of moneys ordered 
 to be paid, hut the provisions therein are all subject to any 
 special provisions in the special Acts dealing with the of- 
 fence or matter. Section 62 provides that where a conviction 
 or order directs payment of money and the Act authorizing 
 such conviction or order either (1) authorizes a distress and 
 sale of the defendant's goods, or (2) does not mention any 
 mode of enforcing payment, then in either of these cases, a 
 distress warrant (Form N 1, in case of a conviction, or N 
 2, in case of an order) may be issued to levy the amount 
 mentioned and the costs of distress. If the constable to 
 whom the distress warrant is directed finds goods belonging 
 to the defendant within the jurisdiction of the justice who 
 issued the warrant he levies thereon and sells sufficient to 
 pay the amount in the warrant and the costs of distress, 
 and if there be not enough goods to satisfy the whole 
 amount and there are goods in another territory over which 
 the justice who issued the warrant has not jurisdiction, he 
 can get the warrant " backed " (s. 63) by going before a 
 justice of that territory and proving, on oath, the signature 
 of the justice who issued the warrant, whereupon such other 
 
 
Difitrcss — " No Gooih " — Hard Labour. 3» 
 
 justice will endorse it in the Form N 3, and then levy may 
 be made on the goods in that territory for the whole or any 
 balance of the money in the warrant mentioned and costs. 
 In the Territories "backing" is never necessary if the pro- 
 cess is to be executed anywhere in the Territories. He 
 should make a " return " of what he has done to the justice 
 who issued the warrant. 
 
 If he can find " no goods " on which to levy he should 
 make a "return" accordingly (Form N 4). If he finds 
 some goods, but not enough in his opinion to satisfy the 
 warrant, he must consider whether he ought to take his 
 chances of making the money out of the goods or declining 
 to go on with the distress and returning that he can find 
 no sufficient goods, because the defendant's goods cannot 
 be sold for part of the penalty and costs, and the defendant 
 sent to gaol for the balance, so if defendant has paid part 
 it must be returned to him before he can be sent to gaol 
 for non-payment of the rest : Brown v. Sinden, 17 Ont.. 
 App. Kep. 173. 
 
 Where the goods are not sufficient they ought not to be 
 taken, but a return of " no goods " made, and then (s. 66) 
 the justice to whom the return is so made, may issue a 
 warrant of commitment (N 5) requiring the constable to 
 convey the defendant to gaol. If the Act or law authoriz- 
 ing the conviction or order pr >vides imprisonment in case 
 of a distress warrant being returned " no goods," then the 
 commitment shall specify the period of imprisonment not 
 exceeding that mentioned in such Act. If the Act says 
 that " hard labour" may be imposed, then the justice may, 
 if he sees fit, direct "hard labour," but if the Act is silent 
 on that point then the imprisonment cannot be icith hard 
 labour (s. 66). 
 
 MCG.S.C. — 3 
 
r 
 
 M 
 
 When Disfirss irouh! he '•/»*// ///of/ .s." 
 
 I 
 
 If tlic Act <loos not provido for inipriHonnumt at all, in 
 caHo of "no j^ootlR," thon h. 07 jn'ovidcH that inipriHonninnt 
 may ho ordorcd but not oxoocMliiifj; tln'oo niontliH, and " linrd 
 labour" cannot in thin oaHo bti itnpoHod : ANv/. v. 'Vtickcr^ 
 ll> 0. U. 127. 
 
 If a jtistioo iH HiitiHliod (Milior from tho adnuHHion of tho 
 dof(Mulant or othorwiso ihat be lias no ^oodn or that to 
 issue a distress would bo ruinous to tlu' drfinidiint and bis 
 family, bo nood not issuo a distress wnrnint l>utmay prooood 
 to oonnnit to gaol just as if it rtUurn of no goods bad boon 
 mado (s. (VI). 
 
 Noitb(>r sootion 00 nor 07 says that tlio .Tustico who 
 issuos tho warrant of conunitmont shall bo guided in fixing 
 the time or maunrr of imprisonment by the conviction or 
 (H'dor. 
 
 The imprisonnvont here imposed is only as a modo of 
 iMiforeing paynu>nt, consinjuently if the dofoudant at any 
 time pays up the amounts named in tho warrant ef com- 
 mituuMU be nmst \\o \v{ out (s, 1)8). 
 
 What should these be '? In cases under section fiO 
 they will be (1) the amounts named in tho conviction or 
 order, yt) tlio costs of the distress, and (8) tho costs of com- 
 mitnuit and conveying the defendant to gaol (if the 
 justice sees tit to cH\ler these last costs), tlu- amount there- 
 ■of Ixiuii eoniputed and mcntituwd in the warrant. It has 
 been decided that under section ()7 the costs of commit- 
 ment and conveying to gaol cannot bo imposed {Reg. v. 
 Ferris, 18 0. R. 470). 
 
 Now let us apply these remarks to the case in which we 
 have supposed the defendant has been lined $10 and $3.50 
 coats for, say, a commou assault. Looking at eh. 162, 
 
hnpriHoniueut — hJrror to he avoided. 
 
 »r, 
 
 W. S. ('., H. JUi, W(! find tliut it (loos not luontion avif mode, 
 of ('iiforciiif? i)n,ymoiit of tlio f'lno. 
 
 Lot UH lioro (Inivv iittciitioi) to a fr(!(|ncnt orror arining rmt 
 of H(<ctioiiH worddd likd tliin ono. It wnyH tlio ddfcindant Ih 
 liiihlo to a Ihic, not (ixccodinfr f'20 find coHtH, or, to two 
 niontliH* imi'riHonDh'iil. ()l)H(!rvo tliat it dooH nf)t Hiiy 
 tliat in (h'Jduh ol' pdi/iiH'nt ho hImiII 1)0 iuiprlHoncd ; 
 tliiH inipriHomncnt iH not providcid aw a inodf of cocr- 
 cinj^ the dofcndiuit into payirj^ tlio lino. TIkj Hoction 
 nicanH tliiH : two Tn< ''oh of puniHlinicnt. aro prcHfintcd ; 
 for tho dioico of tlio ni(i.^^iHtrat(! ; lie may (1) /""' o** '•<' 
 may ('2) imprhou ; if ho iinoH it hIuiII not uxcwd $20 and 
 coHtH ; if ho impriHonH, tho torm muHt not <!xco(!d two 
 months ; hut lie cannot inipoHit Imlh fino (irid tho impriHon- 
 ni<Mit th('r(! nicntioncHl. If \w.JiniH and tho fino in nf)t fxi.id 
 and tho dcfciKhmt haH no ^oodn, imi)riHonm(;nt may follow, 
 hut that iH hy virtuo of Hoction (17 ((di. 17H), hut h(; can f^<'t 
 liiH r«'l('aH(! in thin caH(! at any imw. hy iiaymcnt, wlicrcaH 
 tho inipi'iHonmcnt montionod in hoction ;{(), ch. 102, could 
 not he oiidod l>y any pfiyjiiont. 
 
 Jhit to rotnrn — w<! s('<! tliat " no mode " of onforciiif^ 
 payment iH fj;iven in woction ."Hf), ch. 102. The juHtic(! under 
 section ()2 (ch. 17H), can therefore inHue a diHtresH warrant, 
 or under Hoction 04 if Hatinliod an there ntated, he need not 
 isHUc a warrant, and in this caHo or in caHo of a return of 
 "no jjjoods," may commit him to p;aol (h. 07) for a period 
 not exceo<lin<j; three montliH without hard lahour unleHH 
 payment sooner made of the line and costs. 
 
 But suppose the justice who convicted had, instead of a 
 fine, imposed impvinDument for, say, one month. Section 30 
 says it may he "with or without hard lahour," so tlie 
 justice may direct the imprisonment in either way. He 
 
36 Enforcing Payment — Forms of Conviction, etc. 
 
 ti 
 
 111' 
 
 can also direct payment to tbe prosecutor of his costs and 
 by section Gl he can enforce payment of these by distress 
 and in default of distress may commit to gaol (J 3), with 
 or without hard labour, for a period not exceeding one 
 month, which will begin to run from the completion of the 
 month originally iiiiposed. The imprisonment for non- 
 payment of the costs may, however, be put an end to by 
 payment at any time (s. 98). 
 
 Let us take another illustration — a case where the Act 
 authorizes a fine and, in default of payment, imprisonment, 
 but does not mention distress — say under section 6, ch. 158, 
 K. S. C. Here thu A-^t does provide a mode of enforcing 
 payment, viz., up to two months' imprisonment, but this 
 imprisonment takes place only in case the fine is not paid. 
 Since the Act here does provide a mode of enforcing pay- 
 ment sections 62 and 67 do not apply, and as the Act 
 itself says nothing about " distress," no distress warrant 
 can issue {Reih v. Sparham, 8 0. li. 570). The justices 
 may also impose costs and as section 60 says that costs are 
 to be recoverable in the same way as the fine, and as the 
 only mode of recovering the fine provided is imprisonment, 
 that is also tao only mode of enforcing payment of the 
 costs, so the defendant will have to stay in gaol the time 
 fixed unless he sooner pays both Jine and costs. 
 
 Section 53 directs that convictions and orders shall be 
 drawn up in one of the forms given in the schedule to ch. 
 178. J 1, J 2 and J 3, are forms of convictions ; K 1, 2, 3, 
 of orders. 
 
 J 1 and K 1 correspond as nearly as possible and are 
 to be used where a fine or sum of money (1) is to be paid, 
 and if not paid, (2) to be recovered by distress, and if no 
 riistress, (3) imprisonment. These forms are not con- 
 
Costs of Conveijing to Gaol. 
 
 87 
 
 sistent with sections 66, 67, beccause those sections author- 
 ize the justice who commits in default of distress to fix the 
 time and mode of imprisonment without reference to the 
 conviction or order. It has been held, however, that a 
 conviction in the form given is not on that account bad. 
 
 J 2 and K 2 also correspond closely being used where the 
 conviction or order directs (1) payment of a line or sum of 
 money and if not paid (2) imprisonment, but not distress. 
 
 Form J 2 is apt to mislead because near the end it uses 
 the words " and the costs and charges of conveying to gnol." 
 These are not in brackets as they are in Form 1. The 
 use of brackets is to indicate that these v/ords are to be 
 inserted or not according to circumstances and not in all 
 cases, and that these costs cannot be imposed unless the 
 Act under which the conviction or order is made, or some 
 other Act, expressly authorizes them : {Refi. v. Hamilton, 
 1 N. W. T. Rep. ; see also Reg. v. Wright, 14 0. E. 668). 
 There is no statute which does authorize the imposition of 
 these costs in cases to which Form J 2 is applicable. The 
 form is taken from the English Act where section 23 makes 
 provision for it, but this section has not been incorporated 
 into our Act. 
 
 J. 3 is where the conviction imposes as a punishment 
 imprisonment, (but no fine), with or without costs. 
 
 K 3 is an order directing some Act to be done, and if not 
 done that imprisonment shall follow the disobedience. It 
 also provides for costs (if ordered) and their recovery by 
 distress, and if no distress, by imprisonment, not exceed- 
 ing one month (s. 61). This latter imprisonment is to 
 commence at the end of tha imprisonment imposed for dis- 
 obedience, and may be terminated by payment of the 
 costs. 
 
iilj 
 
 I 
 
 38 
 
 Order of Dismissal — Costs. 
 
 The only remaining case to be noticed is the form of 
 order of dismissal and for recovery of costs, if ordered. 
 The form given is L and it provides for distress (PI), and 
 in default of distress, for imprisoment (P 2), not exceeding 
 one month, with or without hard labour (s. 61), and by 
 section 70 the justice may require payment of the costs of 
 distress and also of the costs of committing and conveying 
 defendant to gaol. 
 
 By some Acts, e.g., the Vagrant Act, either fine or 
 imprisonment or both may be imposed. If the justices 
 impose both modes of punishment then the conviction 
 should be one made up of parts of both J 3 and J 1 or J 2, 
 according to the mode of recovering the fine, which is 
 given ; selecting J 1 if distress can be ordered, and J 2 
 if 7iot ; the part which deals with the imprisonment awarded 
 as punishment can be adapted from J 3. 
 
 Under the Vagrant Act (ch. 157, s. 8, s-s. 2), no mode of 
 enforcing payment i" provided so by section 62 (ch. 178) 
 the fine may be recovered by distress and the forms to be 
 looked at are J 1 and J 3. 
 
 An effort has been made to indicate at a glance the mode 
 of enforcing convictions and orders by giving a tabular view 
 or Chart (B) of the various steps and it is believed by the 
 writer that any one who has a general knowledge of the 
 subject or such as can be gained by a perusal of these pages 
 will be assisted by the charts in taking the various steps in 
 each case. There is one observation which seems, however, 
 proper to make and that is, that no book or map can dis- 
 pense with the exercise of care and ordinary intelligence, in 
 the applications of the instructions to the various cases ; in 
 the perusal of the statutes and ordinances affecting each 
 matter, and the forms given in the schedule to chapter 178 
 
Exception to ss. 62 and 67. 
 
 3a 
 
 and amending Acts. These forms will generally suggest, 
 if carefully read, the material matters necessary to be set 
 forth, although the writer does not by any means desire to 
 be understood as vouching for their absolute correctness. 
 
 In proceedings under the Larceny Act, the Act respecting 
 '• malicious injuries to property," and " the property of 
 seamen in the navy," it is provided by section 68 that if the 
 penalty is not paid immediately or within the time named 
 by the justice, then unless where otherwise specially directed, 
 namely, in those Acts themselves, the J. P. may commit the 
 offender to gaol (without first issuing a warrant of distress), 
 either with or without hard labour. If the fine with costs 
 exceeds $25, the imprisonment may be up to three months, 
 or if less than $25, then not exceeding two months. The 
 form of conviction will therefore be .J, 2, and of commitment 
 1. This forms an exception to sections 62 and 67, be- 
 cause the cases referred to in section 68 are where no mode 
 of enforcing payment is provided. 
 
 The imprisonment under a warrant of commitment is to 
 be calculated from the earliest moment of the day of the 
 arrest under the warrant — the prisoner should be released 
 on the morning after the expiry of the sentence. Reg. v. 
 Scott, 2 U. C. L. J., N. S. 324 ; Ex parte, Foulkes, 15 M. 
 W., Bowdler's case, 12 Q. B.', 612. 
 
 JOINT OFFENCES. 
 
 If several persons join in the commission of an offence 
 they may be proceeded against by one information and there 
 may be one conviction of all, or separate convictions of 
 each. But the Jine imposed must not be joint, that is, one 
 fine imposed on all would be bad. If the offence is in its 
 nature single, e.g., killing a pigeon (since it can be killed but 
 

 10 
 
 Joint Ofl'ciK'cs— Second OJfrncfs. 
 
 if 
 
 omr), hero oiicli of tlio oiYoiidoi-H ciiuiiol, 1m' IiiumI t.lio wliolc 
 penalty nanuul in tho Act— only one lumnlty oui Ixi im- 
 posed, but in tlie conviction it must bu (ijiportioni'd ho that 
 ciu'li may know what bo has to ])ay. Tbc costs mnst hIho 
 bo apportioned (PufHoint, tjiii t<nii v. (Uahhc, 'M C. V. (Out.) 
 p. 151). If, however, the olVenco is of Huch a njiture tliat 
 tiio guilt of each of tlio joint olTemlerH nuiy bo Hcparate and 
 distinct from that of the otherH, or if the Act dealinj^ with 
 the otTenco declares tiuit '* fuch " or *' every" person com- 
 mitting the olYence shall pay a certain i)eiuilty, then cnch 
 of the offenders may be lined the whole or any part of that 
 penalty, but tiio costs must still be ai)portioned among the 
 offenders, the conviction showing the penalty and the 
 amount of costs each must pay. And in that part of the 
 conviction which imposes imprisonment in d(ifault of distress 
 or payment, care must be taken that it does not subject, any 
 of the defendants to imprisonment for non-payment of any 
 part of the penalty and costs except that payable by himself, 
 as lie ought not to be imprisoned for the default of some 
 other defendant. 
 
 SECOND OFFENCES. 
 
 By some statutes a heavier penalty or a different mode of 
 punishment is provided for a repetition of the saine kind of 
 offence. The defendant must have been convicted for the 
 first offence before he can i)e charged with the second, and 
 for the second before being charged with the third. If it is 
 intended to proceed as for a second or third offence the in- 
 formation and summons must so state in order that the 
 defendant may have notice of the intention to prove that he 
 has been already convicted for a previous offence against 
 the same law. On the trial no evidence of the former con- 
 Tiction should be gone into until the present charge has 
 
Hacond ( )[/'(■ Ncru — Wfurcr. 
 
 41 
 
 Ix'on provod and tlion, liiitnot Ixit'on!, ovidoiicc of flic former 
 conviction or convifdioiiH ciin 1)0 f^'oius into. Tlicsn niny ho 
 provod by copioH of tlumi (Uirtilicd liy tlio (jl(trlc of the (lourt 
 or other i)ropor oIVkmu* in whoso ollicc! they arc;. If th(! proof 
 iH HiitiHfactory tho (!onvi(^tion Hlumhl Hhow thai th(! (hdVnchuit 
 has been found guilty not only of tho i)r()S(!nt olTonco, hut 
 also that ho was prov(Ml to !iavo boon previously convicted 
 as char{j;ed in tho information and that his present con- 
 viction is for a Hecond or third offence. If the evidtinco 
 failH to show a previous conviction the defendant nuty be 
 found K'l'lty of tho i)roHent ottonce just as if no i)revioua 
 conviction liad been charf^MMJ. The Statutes f^i^nerally pro- 
 vide that tho " second " otte-ncc must bo one commUlcd after 
 the conviction for the first olfenco. 
 
 WAIVKR. 
 
 An appearance by defendant to a defective sunimons or 
 one issued on a defective information or complaint or even 
 where no information or complaint exists, is a waiver of the 
 defect or omission and th(! justice may proceed, provided 
 he would otherwise have jurisdiction. J3ut if the matter be 
 one over whicli the justice has no jiiriHdirtion, no appearance 
 or consent by the defendant can give him power to deal with 
 it. In Hep. V. Ilufihes, L. 11. 4 Q. B. \). 014, no information 
 had been laid, the justice signing a warrant brought to him 
 by the prosecutor. The trial took place before two other 
 justices, the defendant appearing and calling a witness in 
 his defence. The conviction was held good, though the 
 justice who issued the warrant could have been sued for 
 damages for his illegal act. 
 
 MARRIED WOMEN — CHILDREN — IDIOTS. 
 
 Married women are not responsible for crimes committed 
 in presence of their husbands if it appears that they may 
 
42 
 
 Married Women — Child re fi — lletii rns. 
 
 have acted under fear or preHsuro from tlioir marital lords 
 — but otherwise where they appear to have acted volun- 
 tarily. 
 
 A child under seven years old cannot be convicted of 
 crime ; if over seven and under fourteen, it may be convicted 
 provided it be proved that it had sufficient capacity to know 
 that the act was wrong. 
 
 Idiots and lunatics cannot be convicted of crime. 
 
 i 
 
 AIDERS AND ABETTORS. 
 
 Every one who aids, abets, counsels or procures the com- 
 mission of an offence may be prosecuted either where the 
 principal offender could be convicted or whore such act of 
 aiding, etc., took place (s. 12, ch. 178, R. S. C). And see 
 R. S. C. ch. 145. 
 
 SEVERAL OFFENCES. 
 
 An information or complaint must not be for more than 
 one matter (s. 26), but in charging the one offence it may 
 be described as committed in different modes (s. 107). 
 
 Hi- 'i 
 
 RETURNS OF CONVICTIONS. 
 
 Section 99, chapter 178, R. S. C. requires every justice to 
 make a quarterly " return " (Form V) of all convictions (not 
 including orders) made by him under Dominion Statutes. 
 If two or more justices join in a conviction they must also 
 join in making the return. The return must show what 
 moneys were received and what was done therewith, and if 
 moneys are paid in subsequent to any return they must be 
 included in the next return (s. 100). Neglect to obey these 
 sections is punishable by a penalty of $80 (s. 101). 
 
 In Ontario, " returns " are provided for by chapter 76, 
 Rev. Stat., and such returns must include convictions under 
 
lieturns of Conuictiuns, etc. 
 
 48 
 
 Provincial Acts and whoro made by more than one juHtice 
 must be "immediate," under penalty of $80 for disobedience. 
 
 In the Territories, cliapter 44,11. 0., requires a quarterly 
 return to the Lieutenant-Governor of " all proceedinj^s " 
 and also payment to him of all " fines " received during 
 the preceding quarter. A penalty of $100 may be the 
 consequence of disobedience. 
 
 The ** returns " here mentioned do not call for the con- 
 victions themselves — they are simply schedules giving short 
 particulars as indicated by the forms. 
 
 But by section 85 chapter 178, K. S. C, all convictions 
 and orders under iJominion Acts must bo transmitted to 
 the Court, to which an appeal will lie, before the time for 
 hearing such an appeal and that, too, whether any notice 
 of appeal has been given or not. If an appeal has been 
 taken and a deposit of money made with the justice, he 
 must also transmit such deposit to the Clerk of the Court. 
 Justices, especially in the Territories, should therefore 
 transmit their convictions and orders at once to the Clerk 
 of the Court. 
 
 APPEALS. 
 
 »Vhen notice of appeal has been duly given and the 
 proper recognizance entered into, proceedings under the 
 conviction or order appealed from should be stayed until 
 the appeal is disposed of. If the appeal succeeds the justice 
 cannot, of course, do anything further, but if it fails, then 
 the justice will proceed subject to the judgment of the 
 Appellate Court. 
 
 STATING A CASE. 
 
 By the recent Act (ch. 37 of 1890 D) a new duty is im- 
 posed on justices, viz., that of *' stating a case." Section 
 
44 
 
 Shi fill;/ II ('(ISC. 
 
 m 
 
 m 
 
 24 provides that citlior [)iirty, wliotlicr prosociitor or eoni- 
 pliiinant or (Icfendant, may ([lu^stion a conviction, order or 
 other proceed in;j; of a justice on the <;round that it is errone- 
 ous in point of law, or is in okch'ss of jurisdiction, hut not 
 on other {^rounds such, for exaniph% as that it is a<];aini-t 
 the evidence or weight of evidence. The moih) of (]uesti()nin<; 
 it under this section is to apply to the justice to " state a 
 
 case. 
 
 The '* case " will set forth (1) " the facts of the case " 
 and ['l) "the grounds on which the proceetlinp; is questioned" 
 and will he signed hy the justice. The procedure governing 
 the application for, and the stating of the case is to he pro- 
 vided hy rules and orders passed hy the Courts in their 
 respective Provinces. Such rules and orders have heeu 
 made hy the Supreme Court of the North-West Territories 
 and will he found in the appendix. 
 
 The party making the a[)plication is called the " appel- 
 lant ' and he is required to enter into a recognizance as 
 prescrihed hy suh-section 4. On this heing done and the 
 proper fees paid to the justice the appellant is entitled to 
 have a case stated and delivered to him and, if he is in cus- 
 tody, to be liberated. 
 
 The justice may refuse to state a case if in his judgment 
 the application is " frivolous," hut not otherwise. In case 
 he refuses to state a case the appellant may apply to the 
 Court or a Judge in Chambers for an order requiring him 
 to do so. The justice must, of course, obey any order made 
 on such application. 
 
 "When the case is stated and delivered to the appellant 
 the Court or Judge before whom it comes for consideration 
 is given large powers of affirming, reversing or modifying, 
 
M(!^ceU(i}ic(>uH Hints. 
 
 46 
 
 or may remit the matter to the justice with its or his 
 opinion. 
 
 After disposal of the matter hy tlie Court if the convic- 
 tion, etc., has been aHirnied, amended, etc., the justice 
 whose proceedi'ip; was so questioned, or any other justice 
 witli the same jurisdiction, may proceed to enforce it (s.-s 10) 
 just as if it had originally been as it now is. 
 
 5IISCICLLANE0US HINTS. 
 
 A justice of the peace ought not to act in any case in 
 which from relationship to any of the parties, or a pecuniary 
 interest in the result, or from having advised or instigated 
 the prosecution, he is likely to be biased in his judgment. 
 If he is in doubt, he ought perhaps to decide not to act. 
 
 He may dismiss an assault case if it seems to him to have 
 been very trivial, even though the defendant may be tech- 
 nically guilty (ch. 20, s. U, K. S. C). 
 
 A justice may often save much bitterness between neigh- 
 bours who have commenced proceedings before hiui by 
 suggesting to them an amicable adjustment of the cause of 
 contention and affording them an opportuity for arriving 
 thereat. 
 
 SUMMARY OFFENCES. 
 
 A list of offences that may be summnrily dealt with by 
 one, or more than one J. P. will be found at p. 7'J, et acq. 
 
PART II. 
 
 INDICTABLE OFFENCES. 
 
mmm 
 
 1 
 
 H 
 
 i I 
 
 
PART II. 
 
 INDICTABLE OFFENCES. 
 
 In this part we sball review the proceedings before a 
 J. P. in respect of those ofifences with which ''he has no 
 power to deal summarily— but can only enquire whether 
 the persons charged therewith should be required to stand 
 their trial by a competent Court. 
 
 These proceedings are regulated either 
 
 By the Acts dealing with the particular offences, 
 or by chapter 174, R. S. C, 
 or partly by both. 
 
 IS IT AN 
 
 " INDICTABLE " OFFENCE ? 
 
 When a matter is brought before a J. P. he must con- 
 sider whether it is an "indictable" or a "summary" 
 offence. Common assault may be either-if the prosecutor 
 desires it tried summarily the J. P. may so try it, but if it 
 turns out to have been accompanied by an attempt to com- 
 mit a felony or if from any other cause the J. P. thinks it 
 ought not to be tried summarily he must treat it as an 
 " indictable " offence,— so also if any question arises as to 
 title to any lands, tenements, etc., or as to any bankruptcy 
 or insolvency proceedings or any execution under the pro- 
 cess of a Court of justice. 
 
 In any of these cases his jurisdiction to deal with the 
 matter in a summary manner is taken away and his only 
 power is to treat it as an indictable offence. 
 
 If on the other hand the prosecutor does not wish the 
 complaint for assault tried by the J. P. summarily and if 
 
 MCG.S.C. — 4 
 

 ii- '; 
 
 50 
 
 ■\ I 
 
 i, g=. 
 
 I 
 
 ■?-<■ 
 
 Jurisdiction — Place of Offence. 
 
 he does not request the justice to so try it the case must 
 be treated as an indictable offence. 
 
 If the J. P. decides that the matter iL'?'Ought before him 
 is an indictable ofifence or one which mutf be treated by 
 him as such he must next ascertain whether it is one 
 within his territorial jurisdiction. 
 
 WHERE WAS THE OFFENCE COMMITTED? WHEHE IS THE 
 
 OFFENDER NOW? 
 
 The oifence must either 
 
 (1) Have been committed within the territory of the 
 
 J. P., or 
 
 (2) The offender must be or reside (or be suspected 
 
 of being or residing) within such territory at 
 the date of the information, or 
 
 (3) Be one of the cases soon to be referred to. 
 
 That is to say — if the offence is not charged as having 
 been committed within the territory of the J. P., he will 
 still have jurisdiction, if the offender is or resides [or it is so 
 suspected] within the territory of the J. P. 
 
 In this respect his jurisdiction in indictable cases is 
 wider than in summary matters as in the latter he can 
 only deal with matters happening within his territory. 
 
 By " territory " is meant the area of country over which 
 a J. P. has jurisdiction. In the Territories a Justice of the 
 Peace has jurisdiction over the whole of these Territories. 
 In the other Provinces he has jurisdiction only over the 
 county, district or other place over which his commission 
 gives him jurisdiction or for which he is ex-officio a J. P. 
 
 Besides the cases where the offence happened or the 
 offender is or resides, etc., within the territory of the J. P., 
 
Where certain Offences deemed as Committed. 51 
 
 there are other cases in which he has jurisdiction over 
 indictable offences 
 
 (a) If a thief has in possession or brings into his 
 territory property stolen, embezzled, etc., either 
 out of Canada {e.g., in the United States) or in 
 some other part of Canada (s. 21, 22, K. S. C, 
 
 ch. 174). 
 
 {h) In cases of murder and manslaughter, if the act 
 causing death was committed in his territory 
 though the death took place out of Canada or 
 beyond the sea, or vice versa, if the death occur- 
 red in the territory of the J. P., from an act 
 committed abroad (s. 9). 
 
 (c) If the crime was committed on, or icithin a mile 
 
 of the houndarj) of his territory, or if it is uncer- 
 tain whether the place is within this territory or 
 if the crime was begun in one territory and com- 
 pleted in another, a justice of either territory 
 may deal with it (s. 10). 
 
 (d) If the crime was committed in a railway train, 
 
 vessel, etc., on a journey through several terri- 
 tories (s. 11), or on a highway or canal or river 
 between territories (s. 12), a justice of any of 
 such territories may deal with it. 
 
 {e) In unorganized tracts and provisional districts 
 in Ontario (see s. 14). 
 
 (/) Perjury, bigamy and offences against sections 53, 
 54 and 55 of the Larceny Act (s. 16). 
 
 ig) Accessories (s. 17). 
 
 {h) Forgery (s. 18). 
 
■■1 
 
 i 
 
 
 
 I'i 
 
 M Information or Complaint. 
 
 (t) Kidnapping, if any person kidnapped were carried 
 through the territory (a. 19). 
 
 0) A receive! of stolen goods, if he has or had the 
 property in the territory or if the thief could be 
 tried in such territory (s. 20). 
 
 [k) Counterfeiters uttering coin in different places 
 (s. 23). 
 
 The foundation of a justice's right to deal with any par- 
 ticular case is — 
 
 AN "information" OR "COMPLAINT," (FoRM A). 
 
 Without an " information " he has no jurisdiction. An 
 ** information " is a statement in writing and under oath 
 (s. 38), except where by the special Act under which the 
 complaint is made, it may be without oath. But in all 
 cases, without exception, if a warrant is to be issued in the 
 first instance, the complaint mutt be under oath (s. 38). 
 
 Looking at Form (A) we see that it states, in the margin 
 the Province and district in which the J. P. acts. In the 
 Territories the district need not be mentioned, because the 
 J. P. has jurisdiction throughout the .whole of the Terri- 
 tories. 
 
 It then commences with " The information and complaint 
 of C. D." (the prosecutor). His residence and occupation 
 are to be stated, also the date of the information, the name 
 of the J. P., and the place for which he is such J. P. In 
 the Territories he will describe himself as " a Justice of 
 the Peace in and for the North- West Territories of Canada." 
 
 Then come the words " who saith that A. B." (the offen- 
 der), on (date of offence), at (place of the offence), did (here 
 give a description of the offence). 
 
Form of Information. 
 
 68 
 
 If the reader will turn to the second schedule at the end 
 of ch. 174, R. S. C, he will find forms of indictmeniis suit- 
 able to different offences and these will be a guide to him 
 in preparing a description of the offence. Or he may look 
 at the statute which deals with the offence and from that 
 get a description. It may frequently be prudent, and 
 sometimes it is necessary, to state the manner in which the 
 offence was committed. Care should be taken not to omit 
 the words "feloniously," "wilfully," "fraudulently," "know- 
 ingly," " maliciously," " corruptly," etc., wherever any 
 of these is or are used in the Act dealing with the offence. 
 If the crime is a felony then it should be described as done 
 " feloniously." 
 
 Defects in the information summons or warrant, how- 
 ever, are not fatal (s. 58), nor is a difference between the 
 statements therein and the facts as shown by the evidence. 
 If the defendant has been thereby misled he is entitled to 
 an adjournment if he demands it (s. 59). 
 
 If the offence concerns property and it is necessary to 
 mention the ownership of it, if it belongs to partners or 
 several persons, the name of 07ie of the owners is all that 
 need be given, thus, " the property of John Smith and 
 others " is sufficient. 
 
 BRINGING UP THE ACCUSED. 
 
 If the accused be already in custody (having been 
 arrested under sections 24 to 29, ch. 17-4, R. S. C, without 
 a warrant), no summons or warrant need be issued. On 
 an information being laid, a verbal order to the person 
 having him in cu&tody to bring him before the J. P. is 
 sufficient. 
 
64 
 
 Summons or Warrant. 
 
 II 
 
 But if the accused is not in custody then the next step 
 after the " information " is to issue either a summons (Form 
 
 C) or a warrant (Form B). The J. P. must decide which of 
 these should be employed, having regard to the gravity of the 
 offence ; the probability of the accused obeying a summons 
 and also, perhaps, the probability of his being guilty, judg- 
 ing from the character and statements of the prosecutor. 
 
 If a summons is issued it will be addressed to the accused, 
 will describe the offence, and inform him whe?i and ivhere 
 he is to appear. 
 
 It will be served by a constable or peace officer 
 
 (1) By delivering it personally to the accused, or if this 
 
 cannot conveniently be done, 
 
 (2) By leaving it for him with some person, at his last 
 
 or most usual place of abode (s. 41). In this 
 case the nature of the summons should be 
 explained to the person with whom it is so left. 
 
 The constable who serves it will attend at the time and 
 place named in the summons so as to prove the service if 
 necessary (s. 42). 
 
 If, after issuing a summons as above f aA before the time 
 for appearing, the justice should become satisfied that a 
 warrant ought to be issued, he may issue a warrant (B), 
 without waiting to see if the accused will obey the sum- 
 mons (s. 31). 
 
 If the accused disobeys the summons, the J. P. may, on 
 proof on oath of the service, now issue a warrant (Form 
 
 D) to bring him under arrest (s. 43). 
 
 If, however, for good reasons the J. P. thinks it necessary 
 that, instead of a summons, a warrant should issue in the 
 
Warrants — Where and When Executed. 65 
 
 first instance, he may grant a warrant (Form B. s-s. 30, 
 88, 40), provided the information was in writing and under 
 oath. 
 
 Warrants may be granted on Sundays or other statutory 
 holidays (s. 37), and are su/ned and scaled by the J. P., but 
 the absence of the seal will not invalidate the warrant or 
 summons, provided it is therein declared to be under the 
 *' hand and seal " of the J. P. (s. 45). For mode of address- 
 ing the warrant see section 44. 
 
 A warrant is not made returnable at any particular time, 
 that is, it is not necessary to mention in it, ivhen the 
 accused is to be brought before the J. P. (s. 46), and so 
 it stands good until executed. 
 
 The accused may be arrested in the territory of the J. P. 
 who signs the warrant, or, in case of fresh pursuit, at any 
 place not over 7 miles across the border. Otherwise it will 
 be necessary to get the warrant " backed " (s. 49), that is, 
 the constable who has the warrant must go before a J. P. for 
 the place where the accused is, prove the signature of the J.P. 
 who issued it and obtain an indorsement (Form I) on the 
 warrant signed by this other J. P. It may now be executed 
 by the constable who brought it or by any of the constables 
 mentioned in the indorsement. A warrant issued in the 
 North -West Territories may be executed anywhere therein 
 without being " backed." 
 
 When the accused is arrested under a " backed " warrant 
 he may be brought before either the J. P. who first issued 
 it or other J. P. for the same place, or before a J. P. for 
 the territory in which the offence was committed as stated 
 in the warrant (s. 49), or if the prosecutor or any of his 
 witnesses happens to be in the territory where the arrest 
 takes place, the accused may be taken before the J. P. who 
 
If! 
 
 m 
 
 III 
 
 56 ^^ Baching " — Committal — Witnesses. 
 
 "backed" the warrant or some other J. P. for the same 
 territory, provided the justice who backed the warrant so 
 directs (s. 50). This permits a person arrested in, say, 
 Ontario, under a warrant issued in tlie North-West Terri- 
 tories being brought before a J. P. for the county in 
 Ontario in which he was arrested instead of bringing him 
 back to the Territories. But the committal if any will not 
 be to a gaol in Ontario but to a gaol for the territorial 
 division wherein the offence is alleged to have been com- 
 mitted (s. 8G). 
 
 APPEARANCE OF THE ACCUSED. 
 
 We will now suppose that the accused has appeared 
 before the J. P., whether in obedience to a summons or by 
 virtue of a warrant or otherwise. 
 
 The room where the examination takes place is not an 
 open Court, (as in the case of summary trials). No person 
 can be there except the prosecutor, the accused, and the 
 witnesses, without the consent of the J. P. (s. 57), but the 
 practice is, and it would seem also to be his duty, not to 
 shut out the public unless he thinks by so doing the ends 
 of justice will be better answered. He can, consequently, 
 exclude counsel or attorneys of either the prosecutor or 
 accused, but this is not the usual practice and would be 
 justifiable only under very exceptional circumstances. 
 
 It is not necessary that the J. P. who takes the exami- 
 nation should be the same who took the information or 
 issued the summons or warrant. Any other J. P. for the 
 same territory, then present, may take the examination. 
 
 WITNESSES. 
 
 If the witnesses for the prosecution will not attend vol- 
 untarily, the J. P. may grant a summons, provided some 
 
Compelliiu) attenddnce of WitneHses. 67 
 
 competent person makes oath that such proposed witnesses 
 are (1) within Canada and (2) will not vohmtarily attend as 
 witnesses (s. 60). The siinimons will he in form (L). 
 There does not appear to he any rij,'ht to a summons or 
 other process to compel the attendance of witnesses for the 
 accused. 
 
 Instead of a summons, a warrant (L 3), may issue, pro- 
 vided the J. P. is satisfied (in addition to the facts ahove 
 required to he sworn to) on oath that (!J) the proposed 
 witness will probahly not attend unless compelled (s. 02). 
 
 If, where a summons was issued and served either per- 
 sonally or by being left at his residence with some one for 
 him, the witness fails to attend, then, on proof of the ser- 
 vice, a warrant (L 2, s. 61) may issue. Either of these 
 warrants may be '* backed " (see ante p. 55). 
 
 If a witness attends, on summons or warrant, but 
 refuses to be examined on oath or to take the oatij, 
 or having taken the oath, refuses to answer questions, 
 without just excuse, the J. P. may by warrant (L 4) commit 
 him to gaol or other confinement for a period not exceed- 
 ing 10 days unless in the meantime he consents to be 
 examined or sworn or answer as the case may be (s. 63). 
 A witness may refuse to answer questions the answers to 
 which might tend to convict himself of a crime, so also a 
 husband is not usually obliged to give evidence against hi& 
 wife or a wife against her husband (see ante p. 19). 
 
 It will be noted that section 63 applies only where the 
 witness has attended in obedience to a summons or warrant 
 so that, before he can be committed to gaol it would be 
 necessary to issue a summons or warrant and have it 
 served or executed, and then if he still refused to swear, 
 etc., he could be proceeded against as above. 
 
58 
 
 RrffifUffJinff A rciixi'd. 
 
 If tho pai'ti«>H an! not ruady to procood with tlio oxamiua- 
 tioii, owiu}:!; oitlior to ahscMico of witiiosHos or any other roa- 
 HonnhK> cauH«>, tho J. I*, then i)rosc'nt, may adjourn and 
 rcMnand tho prisonor, hy warrant (I\f) from titno to tinio, 
 hut not h)n}4;or than cinlit vlcur (((ti/x at any ono tinio (a. 01), 
 that is, ho can romand Inm from any hour on tho 10th to 
 any hour on tho 18th, and on tho 18th ho can again romand 
 to iwiy I'.'HU' on tho tiOth, or to Honi(> oa vlior day. If the 
 ii mand is not to oxcood <V (hiifn, it nood not ho in initiitif — 
 a Yorhal ord( ;• will ho sulViciont (s. (>5) ; if for ah>n{j;or poriod 
 it must ho hy warrant (j\r). 
 
 N'.itwithstanding a romand, tho ,} . V. may, if tlio eircum- 
 stancos justify it in his opinion, ordov tho accused to ho 
 broufi^lit before him sooner (s, (»(5). 
 
 When tho accused is romandod, instead of hoing kept in 
 custody lu> may ho h^t out on hail (s. (>7) on ontorinj^ into 
 ft ricoj^nizanco (I\[ 1) I'ithor witls or witliout sureties in such 
 amount as tho J. P. thinks [)ropyr. If tho accused should 
 not appear at tho time ap[)ointod any justice then present 
 may certify on the back of tho recoj^nizanco the fact of his 
 failing to appear, and send it to the Clerk of tho Court, or 
 other proper oOicer, to be further dealt with. 
 
 A 'varraut would of course also issue to arrest and bring 
 the accused before the J. P., but no provision is expressly 
 made in the Act for this, nor is any form of warrant given, 
 but Form ^ could be altered +0 suit the case, by reciting the 
 facts of the accused having appeared, been remanded, given 
 bail and failed to appear. 
 
 I ' 
 
 THE EXAMINATION. 
 
 Let us suppose that all parties are now ready and that 
 the examination is about to proceed. 
 
K.niniiiuition of Acr/tsrd. 
 
 69 
 
 It i'h a coinmon but crroiioouH practico to ank tlio acciiHod 
 wlu'tlior lio ifl (luiltij or not. Tlion! jh no authority for thin 
 <|U('Kti()n, and, if ankiMl, lio ih'.va\ not atiHwor it. 
 
 Tlu! f'lrHt procoodinnr jh tin; (ixatninatioii of vvitncHHcH (h. iVJ), 
 and tliiH must in all caHCH, iritlmitt. a.intpfion, tako jilaco 
 in jo-fHcticc of tlu! accnHod, and Ik! inuHt havo i^jriniHsion to 
 question tlu; witnoHHcH [)rodu{!(Ml a<,'ainHt liini after tlioy liavc; 
 Kivcn (!vid(!n('(! for tin; proHoention. 
 
 TIki witncHHOB aro " tlioHf; wlio know tlio facts and circum- 
 stancoH," and Ixiforo boin^:; asko(i any (pioHtionH thciy niust 
 bo Hworn or nniko anirmation. Seo form of oatii, ('to., 
 (tiitc, J). 21. 
 
 Tluiir c'videiKH! nniHt bo tiikon down in writing' oitbor l)v 
 tbod. P. hiniHolf or by Homo ono aotiiif,' as lii.s dork, and 
 the ovidonco ho takc^n down must bo road ovfT to oacdi wit- 
 nosK at the (doso of liis oxamimition and, after huoIi corroc- 
 tions arc made as lie rciuiros, must bo Hi<^ned by him. 
 
 The mode of oxamining witnoKsos and some principal 
 rules of (>vidonce have already been touched upon in Part 
 I. and need not be rojx^atod bore. 
 
 The stateinonts of the witnesses are called " depositions," 
 and are (totninonjx'd in accordance with Form N, a careful 
 readiiif]; of which will clearly show the mode of tak-( ,' down 
 evidence. 
 
 As soon JVH each witness has j^dven his evidence for the 
 prosecution the prisoner or his lawyer, if ono is present 
 and permitted by i\\v. J. P. to act, may cross-examine him, 
 and the answers given must be taken down in the same way 
 as bis previous answers. 
 
 When the witness has signed bis deposition the J. P. 
 usually cjrtilios that the above "deposition of A. B. was 
 
60 
 
 TdJiiiif/ the Evidence — Confessions. 
 
 taken and sworn before me at on the day and year 
 
 first above mentioned " and signs it, but fhis is not actually 
 necessary because one certificate at the end and stating that 
 all "the above depositions of A. B., C. D. and E. F. were 
 taken, etc.," will be sufficient (See Form N). 
 
 When the examination of all the witnesses against the 
 prisoner is concluded the depositions are to be read to him 
 (s. 70) and tlie J. P. then asks him the following question : 
 " Having heard the evidence do you wish to say anything 
 " in answer to the charge '? You are not obliged to say 
 " anytliing unless you desire to do so, but whatever you say 
 " will be taken down in writing, and may be given in evi- 
 " denec against you at 3'our trial." 
 
 \V' at^^erhe then says must be taken down (See Form 
 0) ana lead to him, and after being corrected as he may 
 desire, is signed by the J. P. and kept among the other 
 papers. 
 
 If any promise has been made to the prisoner b}' the 
 prosecutor or any one in authoriiy over him to induce him to 
 confess, or any threat made to him with the same object in 
 view, the J. P. should, before the prisoner makes any state- 
 ment, in addition to the above warning, inform and give him 
 clearly to understand that he has nothing to hope for from 
 any promise of favour and nothing to fear from any such 
 threat, but that anything he says may be given in evidence 
 against him at his trial, notwithstanding any such promise 
 or threat (s. 71). 
 
 The previous confessions or admissions or other state- 
 ments of the accused may be proved like any other fact, 
 but if it appears that any promise of favour or any threat 
 was made to him by the i)rosecutor or any one in authority, 
 as e.g. a constable or person having him in charge or by 
 
Cmif ess ions — Witnesses for Defence. 
 
 61 
 
 his master or mistress in some ca es, any confession made 
 after such promise or threat is not admissible, unless in the 
 meantime he had been shown that such promise or threat 
 is of no effect and that he must place no reliance thereon. 
 Statements made by him while his mind was left under the 
 influence of such promise or threat are not evidence. The 
 warning given in section 71 is intended to remove the im- 
 pression so made on his mind. A very slight promise or 
 hopo of favour is sufficient to prevent confessions made 
 rhi leafter being admissible. In one case a statement by 
 the constable in charge of the prisoner that "it would be 
 better for him to tell the truth," was held sufficient to 
 prevent *lu prisoner's statement being admitted against 
 him and also to exclude a lengthy and detailed confession 
 of his crime made while in gawl several days afterwards to 
 a ne V:.; n|:er reporter. 
 
 EVIDENCE FOR THE DEFENCE. 
 
 It is not usual to hear witnesses for the defence, and 
 strictly speaking no evidence for the defence can be consid- 
 ered in the same way as it would in a summary case. Yet 
 the J. P. cannot refuse to hear such witnesses as the ac- 
 cused chooses to offer. (See Re Pliipps,^ App. Eep. Ont.) 
 
 There are two reasons for this : one is that the J. P. can 
 bind over the witnesses to appear at the tria; and the ac- 
 cused should, injustice, be enabled, as well au the Crown, 
 to secure the attendance of witnesses. Besides, the deposi- 
 tions before the J. P. may, under cevfcain circumstances, be 
 used at the trial. The other reason is that the witnesses 
 for the accused may give evidence which so explains that 
 given for the prosecution as to deprive it of the weight and 
 significance it would otherwise have. In so far, how- 
 
62 
 
 Considering the Evidence. 
 
 h-i'' 
 
 i'-a 
 
 ever, as the witnesses for the defence simply contradict 
 those for the prosecution, the J. P. must not decide which 
 are to be believed for Ihat would be to try the case ; in that 
 event he should disregard the evidence for the prisoner in 
 considering whether he should commit for trial. 
 
 At the close of the case against the accused he may, or if 
 he has a lawyer, the latter may, point out any reasons why 
 the accused should be discharged — such, for example, as 
 that the evidence, even if true, does not reasonably make 
 out a case against him, or that it is so jntradictory or 
 otherwise unsatisfactory as not to warrant a committal. If 
 the J. P. thinks that for the reasons just given or because 
 of the extreme improbability of the charge coupled with the 
 bias or interest of the witnesses in prosecuting the prisoner 
 or from their known bal character or for other reasons 
 appearing, the evidence is not such as \vould likely convince 
 a jury, or is not worthy of credence, he will be justified in 
 discharging the prisoner. If, however, it becomes apparent 
 to the J. P. in the course of the examination that all the 
 evidence which might be given at the trial is not before him, 
 as it sometimes happens that on the score of expense or 
 from other causes all the witnesses are not produced before 
 the J. P. who may be present at the trial, this would be a 
 'ircumstance for his consideration in deciding whether to 
 ''ommit or not. A conscientious magistrate will consider 
 fairly and fully all the circumstances and decide accord- 
 ingly, bearing in mind always that the accused is deemed 
 innocent until there is reasonable proof against him, and 
 that in cases where a reasonable doubt exists the accused 
 is entitled to the benefit thereof — he may, and in some cases 
 he should, take time to read over the depositions carefully 
 before giving judgment. If not prepared to decide at once 
 
Commitment — Bail before. 
 
 63 
 
 he may remand the prisoner to a time and place to be then 
 fixed, the prisoner in the meantime being kept in custody 
 or let out on bail, as already mentioned. On the day and 
 at the place appointed the prisoner being again present the 
 J. P. will give judgment. 
 
 If he decides to dismiss the charge he will order the pris- 
 oner to be forthwith liberated as far as that charge is con- 
 cerned (s. 73). No formal order is necessary. He usually 
 makes a note of the dismissal at the foot of the depositions. 
 
 If, on the contrary, he thinks the evidence sufficient to 
 put the prisoner upon his trial, he may proceed as follows : 
 
 A. BEFORE COMJJITMENT. 
 
 1. If the crime charged is treason or felony punishable 
 by death, he must commit the prisoner to gaol to await his 
 trial : in this case bail cannot be taken except on an order 
 from a Superior Court Judge (s. 83). 
 
 2. If the crime is any other felony (not punishable by 
 death) then whether the prisoner should be admitted to bail 
 or not depends on whether the J. P. thinks the evidence 
 against him stronrj or weak. If it raises a strong presump- 
 tion of guilt then the J. P. should by warrant (P) commit 
 him to gaol (s. 73). He should keep a copy of this war- 
 rant (s. 93). If it does not, in his opinion, raise a strong 
 presumption of guilt, then he, jointly with another J. P., 
 should admit to bail (s. 81). The sureties must be to the 
 satisfaction of the two J. P.'s and they must both join in 
 taking the recognizance (S) and in giving notice to the sure- 
 ties (Form S 2, s. 81). 
 
 3. If the offence is a misdemeanovr then, no matter 
 whether the evidence is strong or weak, the J. P. can and 
 
€4 
 
 Bail after Comm'^ment. 
 
 must admit to bail, if sufficient sureties are ofiferecl, and he 
 can do this alone without the aid of a second J. P. (ss. 73 
 and 81). The recognizance will follow Form S. 
 
 In felonies there should be two sureties at least, in 
 misdemeanours one may be sufficient. 
 
 In either of the above cases if no sufficient bail be forth- 
 coming the prisoner must be committed to gaol. Unrea- 
 sonably high bail must not be required. Each surety 
 may be required to justify, i.e., to make affidavit that he is 
 worth sufficient property over and above his debts and 
 other sums for which he is already bail, out of which the 
 amount for which he proposes to be surety can be made if 
 necessary. 
 
 B. AFTER COMMITMENT. 
 
 4, Once the prisoner is finally committed to gaol, if the 
 charge be a felony he cannot be admitted to bail except on 
 the order of a Judge, {a) If the charge be treason or 
 felony punishable with death — it must be an order from a 
 Superior Court Judge (s. 83). {h) In other felonies the 
 order may be that of either a Superior or County Court 
 Judge (s. 82). 
 
 On such order being granted two justices may take the 
 necessary recognizance with sufficient sureties (Form S) in 
 the amount fixed by the Judge's order and the justices 
 shall then issue a warrant of deliverance vS 3j directed to 
 the keeper of the gaol and send or cause it to be lodged 
 with such gaoler. The Judge's order is to be attached to 
 the warrant (ss. 82, 84). 
 
 5. If the crime charged is a misdemeanour, the J. P. 
 who committed the prisoner for trial, may at any time 
 before the nrst day of the sitting of the Court at which the 
 
Bail hy Juclge^s Order. 
 
 65 
 
 accused is to be tried, admit him to bail, without any 
 Judge's order (s. 73), or he may certify on the back of the 
 warrant of committal the amount of bail required and then 
 any other J. P. for the same territory may admit to bail in 
 that amount. 
 
 By section 82, any Judge (Superior or County Court) may 
 also make an order for bail in misdemeanours, but in that 
 case it requires iiro justices to take the recognizance and 
 grant the warrant of deliverance, etc., and the order 
 should fix th( amount of the bail. 
 
 COMMITTING TO GAOL. 
 
 If the J. P. decides to commit he must prepare and 
 sign and seal a warrant (P). 
 
 To what gaol is he to commit him? That depends on 
 where the offender can be tried. The rule is that offenders 
 must be tried in the territorial division in which the crime 
 is charged as having been committed, or in which by the 
 provisions of the statute it is to be deemed as if committed. 
 For example by section 11 (R. S. C, ch. 174), a crime com- 
 mitted in a railway train may be treated as if committed 
 in any district, county or place through which the train 
 passed in the course of the journey during which the 
 crime took place, and the prisoner may be tried in any such 
 district, county or place. Again, by section 16, persons 
 charged with perjury, bigamy, or with an offence under 
 sections 53, 54 or 55 of the Larceny Act, may be tried 
 either where the crime was committed or where he has 
 been apprehended or is in custody. Sections 8 to 23 
 (ch. 174, E. S. C), make provision for the place of trial of 
 a variety of crimes, reference to which may be made where- 
 ever the crime has not been entirely committed within the 
 territorial jurisdiction of the J. P. 
 
 MCG.S.C. — 5 
 
66 
 
 Committal — to ivhat Gaol. 
 
 The committal will be to the gaol for the territory of the 
 J. P. if the trial can take place in such territory, if not, 
 then to a gaol the place where the offence is alleged to 
 have been committed (s. 86). In the Territories offences 
 committed, or which by law may be deemed as committed, 
 in any of the judicial districts can be tried in such district 
 and the prisoner should be committed to a gaol in that 
 district. 
 
 Whenever a person is brought before a J. P. charged 
 with an offence committed in a place outside of the terri- 
 torial jurisdiction of the J. P., and the J. P. thinks the 
 evidence sufficient, he may commit him to gaol for the 
 place where the crime i? alleged to have been committed 
 (s. 86), or may admit him to bail as already mentioned and 
 subject to the rules as to bail hereinbefore given. 
 
 He shall also bind over the prosecutor (if he appeared 
 before him) and the witnesses, by recognizance as herein- 
 after described (s. 86). 
 
 But if, in such a case, the J. P. does not think the evi- 
 dence sufficient to put the accused on his trial, he cannot 
 discharge him (s. 87), but shall by warrant (U) order him 
 to be taken before some justice having jurisdiction for the 
 place where the crime was committed. He shall also bind 
 over the witnesses he examined, and shall deliver the infor- 
 mation, depositions and recognizances along with warrant 
 (U) to a constable to be delivered to the J. P. before whom 
 the accused is to be taken. 
 
 This J. P. on receiving these papers is to treat them 
 as if taken before himself. He may take the examinations 
 of other witnesses and may deal with the matter as if it 
 had originally been before him. If he decides io commit 
 he will send all the depositions and recognizances to the 
 
 
Depositions — Binding Witnesses. 
 
 67 
 
 the 
 
 Clerk of the Court, or other proper officer, where the accused 
 ought to be tried (a. 87). 
 
 The constable who brought the accused before him 
 should prove on oath the signature of the J. P. who signed 
 the warrant (U), and will be entitled to a receipt from the 
 J. P. to whom he delivers the accused, for the prisoner 
 and the several papers (s. 89) and is then also entitled to 
 his fees (ss. 88, 90). 
 
 TRANSMITTING DEPOSITIONS, ETC. 
 
 When a J. P. commits a prisoner for trial he should 
 before or pt the opening of the trial Court, deliver or send 
 to the proi er officer of such Court all the papers in the 
 matter (s. 77). In the Territories this officer is the Clerk 
 of the Court ; in Ontario, the County Attorney. 
 
 BINDING WITNESSES. 
 
 In order to secure the attendance at the trial of the prose- 
 cutor and witnesses examined before him, the J. P. should 
 compel them to enter each into his own recognizance ta 
 appear at the trial Court to prosecute and give evidence or 
 to give evidence (in the case of the witnesses). See 
 Form Q. 
 
 This is a duty imposed upon the J. P., and is not a 
 matter of discretion, except when the prosecutor or witness 
 is a married woman or person under 21 years, in which cases 
 the fJ. P. has a discretion (s. 75). 
 
 If a witness refuses to enter into recognizance he may be 
 sent to gaol by warrant (R) until the trial, unless in the 
 meantime he enters into the recognizance (s. 78), but if! 
 after sending him to gaol the J. P. discharges the accused,, 
 he should by order (R 2, s. 79) release the witness. Theses 
 
i ?;■ 
 
 68 Binding Witnesses — Notice of Bail. 
 
 sections do not apply to the prosecutor unless he is also a 
 witness. 
 
 If a J. P. 'dismisses a charge, the prosecutor may in cer- 
 tain cases (see s. 80) require that his recognizance to 
 prosecute he taken, and when taken, it must be sent by the 
 J. P. to the same officer to whom he would have sent the 
 depositions in case of committal. 
 
 If the J. P. receives notice from a prisoner whom he 
 has committed, or from his counsel, that he intends 
 applying for bail to a Judge, he must (s. 93) send to the 
 Clerk of the Court, etc., a certified copy (under his hand 
 and seal) of all the papers, depositions, etc., in the matter, 
 together with a copy of the warrant of committal, if any, 
 all put up in a sealed envelope ard certified on the outside 
 by the J. P. that it contains the papers and proceedings in 
 the case. This is then handed to the person applying for 
 it. Eefusal to comply renders the J. P. liable to a fine 
 (s. 94). 
 
 SEARCH WARRANTS. 
 
 On oath (K) of a competent witness before a J. P. that 
 thera is reasonable cause to suspect that any property, 
 on or with respect to which larceny or other felony has 
 been committed, is in any house or other place, the J. P. 
 may issue a search warrant (K 2) to search the place or 
 places mentioned, and if such property is found to bring it 
 and the person or persons in possession of the house or 
 place where same was found before him or some other 
 J. P. for the same territory (s. 51). 
 
 So also if the witness proves on oath that there is reason- 
 able cause to suspect that any person has property in his 
 possession or premises in respect to which any offence under 
 
Search Warrants. 
 
 69 
 
 the Larceny Act or chapter 171, R. S. C, haa been com- 
 mitted, a warrant may be granted to search therefor (s. 62). 
 
 Section 53 provides for search warrants in case of gold or 
 silver alleged to be unlawfully deposited or held — and 
 the restoration of such ore, if found, to the owners — and 
 appeals from the decision of the J. P. 
 
 Section 54 provides for the case of lumber, timber, etc., 
 belonging to and marked with the trade-mark of a lumber- 
 man and suspected to be unlawfully kept in a mill, boom, 
 etc. 
 
 Sections 55 and 56 provides for search for tools, etc., 
 used in forgery of bank notes, etc., and counterfeiting, and 
 the destruction of them. 
 
 When on search under a warrant property is found and 
 the person in possession is brought before a J. P. he may 
 on an information being laid proceed against the accused 
 as in other cases. 
 
 SURETIES TO KEEP THE PEACE. 
 
 A J. P. has, by virtue of his commission, power to bind 
 over to keep the peace, persons who, by 
 
 (1) Threats, or 
 
 (2) Other acts amounting to a threat 
 
 have put the complainant in fear of some injury to himself 
 or to his wife or children, but not to his goods and chattels. 
 
 On p. 2198, R. S. C, is given a form of " complaint '* 
 to be made under oath. It will be noticed that three 
 things must be stated : 
 
 (1) The threatening language — giving the exact words. 
 
 (2) That from these threats the complainant fears bodily- 
 
 injury. 
 
IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
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 Hiotographic 
 
 Sciences 
 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, NY. 14580 
 
 (716) 872-4503 
 
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 70 
 
 Sureties. 
 
 (8) That he does not make the complaint from malice or 
 ill-will. 
 
 The justice should be satisfied that the threats used 
 reasonably justify the fear of bodily injury. He may then 
 issue a warrant to bring the party before him. No special 
 form of warrant is given, but Form D, p. 2151, may be 
 adapted by substituting the word " complaint " for " infor- 
 mation " wherever it occurs and stating at the proper 
 place the threats usea (giving the words) and that the 
 complainant by reason "^hereof is afraid that the said A. B. 
 will do him (or his w^V; or children if such be the fact) 
 some bodily injury and r'^r-uires the said A. B. to be 
 required to find sureties t- ' 3p the peace and be of good 
 behaviour towards him. 
 
 On the party appearing before the justice, the complaint 
 should be read to him and he is then asked to show cause 
 (t. e. give any reasons he has) why he should not be bound 
 over. He cannot call witnesses or give evidence to deny 
 that he used the threats alleged but may show that his 
 language has been misunderstood and does not really con- 
 tain any threat such as to create fear of bodily injury, or 
 he may show that the complainant is actuated by malice 
 or ill-will. Unless he can satisfy the justice on one or 
 other of these matters he may be ordered to enter into a 
 recognizance either himself alone or with two sufficient 
 sureties to appear at the next court of general sessions 
 (or, in N. W. T., at the next sittings of court. 
 
 The form of recognizance is given at p. 2199. The 
 blank near the end may be filled up with " six months " 
 or " twelve months," or other reasonable term in jbhe 
 discretion of the justice. The form of commitment is 
 
Sureties. 
 
 71 
 
 found on page 2200, and should show the date of the 
 threats and that the complainant was thereby put in fear 
 of bodily injury. 
 
 In N. W. T. the imprisonment may be to the next sit- 
 tings of the Supreme Court at the nearest place of holding 
 such Court. S. 32, ch. 181, p. 2195, provides for bringing 
 a person so committed, after two weeks, before a Judge 
 who may order his discharge or make such other order 
 as he sees fit. 
 
u 
 
 it!'' 
 11 i ;; 
 
 72 Summary Trials. 
 
 SUMMARY TRIALS OF CERTAIN OFFENCES. 
 
 'M 
 
 !i;\* 
 
 If 
 
 
 In order to admit of a speedy trial and disposal of cer- 
 tain criminal charges which are ordinarily included under 
 the class of indictable offences — provision has been made 
 by several statutes for the trial of these by either one or 
 two justices, (as well as by other tribunals or functionaries 
 with which we have here nothing to do). 
 
 One of these statutes is the " Summary Trials Act," 
 ch. 176, U. S. C. This empowers two justices of the peace 
 to try certain offences, a list of which is given in section 3 
 of that Act. In some of these the jurisdiction of the justices 
 to try is absolute without the consent of the accused (s. 4), 
 but in the majority his consent must first be obtained. 
 
 Before examining th witnesses the justices should put 
 this question to the accused, " Do you consent that the 
 charge against you shall be tried by us or do you desire 
 that it shall be sent for trial by a jury [or by a Judge] at 
 the (naming the Court at which it could soonest be tried)?'* 
 (s. 8). If he consents then the justices may proceed to try 
 and finally dispose of the charge. If he does not consent 
 they can only treat it as an indictable matter and commit 
 for trial, mentioning in the warrant of committal that he 
 elected to be tried by jury (s. 15). Sections 10 and 11 
 specify the punishments imposable under this Act. Sec- 
 tion 12 gives the justices an option to deal summarily with 
 larcenies, etc., where the value of the property exceeds 
 $10. This option is to be exercised after hearing the 
 evidence against the prisoner as for an indictable offence. 
 If they think that the punishment which they can impose 
 is adequate they may instead of committing him for trial, 
 if they think the evidence sufficient for that purpose, put 
 
Offences triable by J. P's. 
 
 78 
 
 the charge into writing and having read it to the accused 
 ask him (as in s. 8) if he consents to be tried by them 
 summarily, telling him also that he is not obliged to plead 
 or answer (that is, go into his defence) before them, but if 
 he does not consent that he will be committed for trial. 
 
 Section 28 provides that if a person is charged before a 
 justice with any oflfence mentioned in this Act he may send 
 him for trial before two justices or other the nearest tri- 
 bunal which under this Act can try the matter. 
 
 This Act provides its own procedure and the provisions 
 of chapters 174 and 178 R. S. C. do not apply except under 
 s. 28. 
 
 Several sections of chanter 164 (The Larceny Act) give 
 power to one J. P. to try summarily certain offences there- 
 under, viz : — 
 
 Stealing dogs, birds, etc., s. 9, s-s. 1. 
 Killing or taking pigeons, s. 10. 
 Stealing or destroying trp^s, s. 19, ^-s. 1,2. 
 Receiving stolen goods in certain cases, s. 20, 84. 
 Stealing or destroying fences, s.'21. 
 Having stolen trees in possession, s. 22. 
 Having stolen vegetables in possession, s. 23, s-s.l,& 8.24. 
 So also in chapter 168 (malicious injuries to property) the 
 following sections give summary powers : — 
 Negligently setting fire, s. 11, s-s. 2. 
 Damaging trees, etc., s. 24, s-s. 1, 2. 
 Damaging garden stuff, s. 25, s-s. 1. 
 Damaging vegetables not in garden, s. 26. 
 Damaging fences, s. 27. 
 Damaging dogs, birds, etc., s. 45. 
 Attempts to injure telegraphs, s. 41. 
 Other malicious injuries, s. 59. 
 
m 
 
 74 
 
 Offences punishable by J. P^s. 
 
 The following list contains all the other sections in the 
 Dominion Criminal Statutes conferring summary trial 
 powers on justices. Those sections marked with a * re- 
 quire two justices — in all the other cases one J. P. may 
 act : — 
 
 Ch 145, s. 8, aiders and abettors. 
 
 Ch. 147, s. 14, affrays. 
 
 Ch. 148, ss. 2 to 8, ^carrying firearms. 
 
 Ch. 149, seizure of arms. 
 
 Ch. 151, 88. 4, 5, 6, 14, 15, 16, peace near public works. 
 
 Ch. 152, s. 1, peace at public meetings. 
 
 Ch. 153, 88. 2, 3, 4, 5, 9, prize fights. 
 
 Ch. 155, s. 10, ^aiding escape from prison. 
 
 Ch. 156, 8. 2, offences against religion. 
 
 Ch. 157, 8. 8, *vagrant8. 
 
 Ch. 158, 88. 6, 7, gaming houses. 
 
 Ch. 159, 88. 2, 3, lotteries. 
 
 Ch. 160, 8. 3, 8-8. 2, gambling in cars, etc. 
 
 Ch. 162, 8. 29, 30, 31, leaving dangerous holes unguarded, 
 8. 36, assaults. 
 
 Ch. 166*, 88. 7, 8, 9, 15, fraudulent marking. 
 
 Ch. 167, 8. 18*, 8. 26, uttering defaced coin. 
 
 8. 28, 8. 29*, 8. 30*, s. 33, unlawfully coining 
 copper or brass. 
 
 Ch. 169, s. 4*, 8. 6, army and navy. 
 
 Ch. 171, 88. 2, 3, seamen's property. 
 
 Ch. 172, ss. 2 and 3*, ss. 4, 5, 12, cruelty to animals. 
 
 Ch. 173*, 88. 10, 12, 15, 19 (2), intimidation. 
 
 Ch. 177, 88. 3*, 31, juvenile offenders. 
 
 Ch. 45*, of 1887, ss. 8, 9, 12. 
 
 Ch. 46, " " 8. 1*, liquor on H. M. ships. 
 
 Ch. 47, " ** B. 2*, imitation notes. 
 
 Ch. 49, " " threats and intimidation. 
 
Ajypendix. 
 
 75 
 
 APPENDIX. 
 
 EULES OF COUET 
 
 In reJ'-tion to stating a case under sec. 28, chap. 37 
 
 of 53 Vic. 
 
 Promulgated by the ISupreme Court of the North- W.?8t Terri- 
 tories. 
 
 1. An application to a justice of the peace to state and 
 sign a case under sub-section 2 of said section 28 shall be 
 in writing and be delivered to such justice or left with some 
 person for him at his place of abode within four days after 
 the making of the conviction order, determination or other 
 proceeding questioned. Sui^h application shall state the 
 grounds upon which the proceeding is questioned. 
 
 2. Within four days after such application has been so 
 delivered or left for him the justice shall state and sign and 
 deliver to the appellant, a case setting forth the facts of the 
 case and the grounds on which the proceeding is questioned 
 stating : — 
 
 (rt) The substance of the information or complaint. 
 
 (b) The names of the prosecutor (or complainant) and 
 the defendant. 
 
 (c) The date of the proceeding questioned. 
 
 (d) The evidence (if any) in full as taken before the J. P. 
 {e) The substance of the conviction order, determination 
 
 or other proceeding questioned. 
 
it; 
 
 If 
 
 
 m 
 
 111 
 
 I:' 
 
 76 
 
 Bales of Court. 
 
 ( f) The grounds on which the same is questioned. 
 
 (^r) The grounds upon which the justice supports the pro- 
 ceeding questioned if the justice sees fit to state any. 
 
 8. But the justice shall not deliver said case until after 
 the appellant shall have entered into a recognizance and 
 paid the fees as provided by sub-section (4) of said section 
 28. 
 
 4. In the event of the justice declining or refusing to 
 state a case the appellant may apply to the Court in banc 
 for a rule as provided by sub-section 6 of said section. 
 
 (a) Or the appellant may in such event apply to a Judge 
 sitting in Chambers in the judicial district in which the 
 justice resides upon affidavit of the facts for a summons 
 calling upon the justice and the respondent to show cause 
 why such case should not be stated, and such Judge may 
 on the return thereof make such order with or without 
 payment of costs as to him seems meet, and the justice 
 being served with such order shall state a case accordingly 
 upon the appellant entering into such recognizance and 
 paying the fees to the justice as provided in said sub-sec- 
 tion 4. 
 
 6. Within twenty days after the delivery to the appellant 
 of a case stated by a justice the appellant shall deliver the 
 same or cause it to be delivered, 
 
 (a) To the Registrar of the Court in banc, or 
 
 (b) [If he desires the matter to be heard or determined 
 by a Judge in Chambers] to the Clerk of the Court of the 
 judicial district in which the justice resides, provided that 
 upon sufficient cause for the delay being shown the Court 
 or Judge as the case may be, may hear and determine the 
 matter although the case was not delivered within said 
 twenty days. 
 
Aj^pendix. 
 
 77 
 
 6. The Judge shall have power, if he thinks fit, to cause 
 the case to be sent back for amendment and thereupon 
 the same shall be forthwith amended in accordance with 
 any directions given by the Judge and transmitted when 
 amended to the Clerk of the Court aforesaid and judgment 
 shall thereafter be given. 
 
 7. An order of a Judge to whom a case stated has been 
 transmitted under section 28 shall have the same effect £3 a 
 rule absolute made by the Court under sub-section 7 of sec- 
 tion 28 and the provisions of sub-section 10 of said section 
 shall apply where the decision is that of a Judge in the 
 same way as in case of a decision by the Court, and any 
 order of the Judge may be enforced by process issued out 
 of the Court in and for the judicial district aforesaid. 
 
 8. In so far as these rules do not expressly make provi- 
 sion whenever a case stated is brought before a Judge, as 
 hereinbefore provided, the provisions of said section 28 as 
 to such a case when before the Court shall, mutatis mu- 
 tandis, be applicable to the proceedings on a case before 
 the Judge, and the recognizance in such case shall be con- 
 ditioned to prosecute the appeal without delay and to submit 
 to the judgment of the Judge and to pay such costs as are 
 by him awarded. 
 
 A justice when delivering a case stated to the appellant 
 shall enclose the same and the recognizance in an envelope 
 sealed and marked on the outside with a statement of what 
 it contains. 
 
 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. 
 
hi 
 
 78 Bides of Court. 
 
 FEES. 
 
 The following and no others shall be the fees payable on 
 proceedings under said section 28 and the foregoing rules : 
 
 To the justice for preparing and stating a case when 
 
 not exceeding ten folios of 100 words each $1.00 
 
 For each folio in excess of 10 folios 05 
 
 To the Registrar or Clerk of the Court (as the case may 
 be) for receiving, filing and entering a case and 
 attending on the argument and judgment 2.00 
 
 To the Registrar or Clerk on every process or order... .50 
 
 ADVOCATES. 
 
 To the advocate on argument 2.00 
 
 To be increased by the Court or the Judge (as the case 
 may be) to a sura not exceeding $10.00 
 
 This item is intended to cover all costs taxable to the 
 advocate. 
 
 COSTS UNDER SUB-SECTION 6, SECTION 28. 
 
 Affidavit of service (including attendance and fee to 
 
 commissioner) 50 
 
 All necessary affidavits (except affidavit of service)... 1.00 
 
 If over five folios, for each additional folio 16 
 
 (This fee to include attendance to have sworn and com- 
 missioner's fee). 
 
 Advocate attending Court or Judge for rule or 
 
 summons 1 .00 
 
 for drawing rule or summons 50 
 
 copy of rule or summons 25 
 
 attending to serve rule, summons, order, or 
 
 other document 25 
 
 counsel fee on return of rule or summons 2.00 
 
Costs. 79 
 
 To be increased by Court or Judge to a sum 
 
 not over 5.00 
 
 drawing rule absolute or order 1.00 
 
 If exceeding five folios, each additional folio .16 
 Where service of any process or paper made 
 through the Sheriff's office mileage to be 
 
 allowed one way per mile 20 
 
 fee on each rule, summons or order, to advocate 1.00 
 fee on each rule, summons or order, to Registrar 
 
 or Clerk 50 
 
 Affidavits may be sworn before any Judge, Notary Public 
 or Justice of the Peace. 
 
 Recognizance. — Drawing and completing and delivery 
 to justice, including all attendances and 
 oath $1.00 
 
 Dated June 10th, 1890. 
 " July 16th, 1890. 
 
 (Sgd.) Hugh Richardson, J., 
 James F. Macleod, J., 
 Chas. B. Rouleau, J., 
 E. L. VVetmore, J., 
 Thos. H. McGuire, J. 
 
H ■ 
 
INDEX. 
 
 A. 
 
 Abettors, 42. 
 
 Absence of defendant, proceeding in, 15. 
 Addressing the court, 27, 62. 
 Adjournments — 
 
 when defendant entitled to, 11, 53. 
 
 in summary matters not over a week, 17, 22, 28. 
 
 what done with defendant pending, 23. 
 See Remand. 
 Advocate, see Attorni'y. 
 AflSrmation, form, wliomay aPirm, 24. 
 Agent, autJiorized, may lay information, 12. 
 Aggrieved party, when must lay information, 12. 
 Alternative description of offence bad, 11. 
 Ambiguity in description of offence, 11, 58. 
 Amending information, 11. 
 Assaults — 
 
 request to try summarily, 2, 12, 49. 
 
 when triable by J. P., when not, 2, 12, 49. 
 
 trivial, may dismiss, 45. 
 Attorney or counsel — 
 
 may lay information, 12. 
 
 may appear for defendant, when, 14. 
 
 may examine and cross-examine witnesses in summary matters, 25. 
 
 not entitled to be present in indictable oases, 66. 
 Appeals, 43. 
 
 transmitting deposit, 43. 
 Appendix, 75. 
 
 B. 
 
 Backing warrants, 16, 33, 55. 
 
 when unnecessary in N. W. T., 16, 33, 55. 
 prisoner arrested under, 66, 66. 
 MCQ.S.C. — 6 
 
INOKX. 
 
 D«il in intUoUhlrt onRRR — 
 l)i»for« oomiuitittiMit;, M, 
 
 whfln JiuIko'h onlor necouBM-y, (\!<, 
 not ncK^onnni'y itt ntinilonieAnoiUA, ().'). 
 nun)lK>r of Btirotion, <U. 
 mnvtion nttint juHtify, (U. 
 
 RftM" o«>nunitinont 
 
 in WonioB, .T«d(ii»"B onlor npO(>m»i»ry, «V1. 
 
 in numlinnoAuoni'i*. not noooHHary, rt4, (i'). 
 
 .1ud^(> may ojslcr buil in niinil0nn>Anom'H, M. 
 
 on ronmnii, r>S. 
 
 nv"»tioe of i\pplioKtiv»tt for .Inilm^'n onlor, OS, 
 
 notioo of ivppIioAtion to .1uvIk(\ <^K. 
 
 J. P. to fiu'iUH^i copy of »lopo«itionH, M. 
 
 ♦T. P. ninst !»ot roqniro too hoAvy biiil, til. 
 Bintiin); pivmnuitor umi witnosBOB to appoiir ami prosoonto, (t7. 
 
 not iliBcretivMiavy with .1. P., dl. 
 
 »>xvH>pt in oortain oabob, 07. 
 By-Uw, oflfencos against, 10. 
 
 c. 
 
 Cantioninj; prisoner boforc atatontont, 00. 
 Oharaotor. \vifnos«i>!» as to. '27. 
 ChildnMi as witnoasos, ID, '21. 
 
 criminal rosinnisibility of, 4'J, 
 Ci>rtirt<vi copies of conviction, 41. 
 CortitiiHi copies of vlcpositiona, OS. 
 
 Commtniont, warrant of, 
 
 m defanlt of payment, 8.'^-JV.>. 
 
 must sptvify siini? payable, ;U. 
 
 when copy of ntinutc to be served, ;V.». 
 
 for trial, ^^'^ et ffq. 
 And see Wittiffs, Cottt, Warrant. 
 Competent witnesses, 19. 
 Complaint, aeo /nranmitiim. 
 
 no w&rnint on. in first instance, 13. 
 Confessions, when evidenod, GO, 61. 
 
 not if obtained by threats, 60, 61. 
 Constable to attend to prove serrioe of process, 14, 54. 
 
INDKX. 
 
 88 
 
 Oonvlotlon— 
 
 linw (lifTfirn from an " onlor," 7. 
 
 funriR of, m, m. 
 
 retiiniM of, 42, 411. 
 
 to l>n trniiHinJfitod to olnrk, 4i». 
 
 proof (»f, by norfcMled nopy, 41. 
 Corroborivtion, whon rcqiiirtMl, '20, iJl. 
 CostB in Biimiimry inattorH 
 
 on (liHniJHHal, 2UIIH. 
 
 may \w iillowod in nil canfH, HO. 
 
 tindor JJoniinion Hfciitiit,nH. J«0, 
 
 niidor N. W. 'P. onllnaiicfm, MO. 
 
 to bo HtntnrI in notnmittiHint, i')4. 
 
 ro(Mivar«Ml liko ponivlty, i«(i. 
 
 bow rooovornd wlioro no fxtniiRy, JiC. 
 
 apportioning in joint olfdnofm, 40. 
 
 Htatin(4 a rnm, mm ApjirmUx. 
 
 of oommittal and convoying; to «aoI. wlii-n may l)o ordfffid.JM, 'W. 
 
 wIhim may notb(iordorofi,;i4, a?. 
 
 of nl)ortivo diHtroHw, M, ;»H. 
 C'onnwcl, hoo Altonicy. 
 Court, opon in Hummary mattorH, 'M. 
 
 but not in otiior niattorH, W. 
 
 wlio only nniy bo [jrimont linro, M',. 
 Credibility of witnoHMOH, toHtin)^, '2t,. 
 
 criminality moroly alTuctH (irodit, 20 
 
 I). 
 
 DeciHion of the cnHc, 28. 
 
 certiMoato of diBniisHal, 29. 
 
 mimito of conviotion or order, 2!>, 
 
 ftdjournmont to oonaider, 2H, 02, 
 Defects in information not fatal, 10, ^liJ. 
 
 amonding, 11. 
 Defendant — 
 
 disobeying HuramonH, 14, 15. 
 
 may appear by attorney, etc., 14, 21. 
 
 when arrested, ,vhat done with, 10, .'58. 
 
 during adjournments, what done with, 23. 
 
 evidence for, in indictable cases, 61. 
 
84 
 
 INDEX. 
 
 w 
 
 Deposit on appeal, transmitting, 43. 
 Depositions — 
 
 to be in writing, 26, 59. 
 
 to be signed by witness and J. P., 5i). 
 
 forms, 69. 
 
 Justice to give copy, 68. 
 
 where to be transmitted, 67. 
 Dismissal — 
 
 in summary matters, 29. 
 
 in indictable m.^tters, 63. 
 
 when J. P. cannot dismiss, 66. 
 Disobeying summons — 
 
 see Defendant, Witnet$. 
 Distress — 
 
 when distress warrant may issue, 32-5. 
 
 when may not, 34-6. 
 
 service of copy of minute first, 29. 
 
 costs of, where no " goods," 34. 
 Double offence in same charge, bad, 11. 
 Doubt, prisoner entitled to benefit, 62. 
 
 
 E. 
 
 \M 
 
 1 
 
 Enforcing appearance of accusad — 
 
 in summary matters, 13 et seq. 
 
 in indictable matters, 53, 54, 55. 
 Enforcmg puyraent of peuaIty,'coats, 31, 32, 35, 36. 
 
 by distress, 31 et seq. 
 
 when by imprisonment only, 31, 32. 
 
 when by imprisonment in default of distress, 32, 
 
 when by distress, 32. 
 Evidence, see Witnesses. 
 
 must be oral and under oath, 24. 
 
 exception in case of children, 19, 21. 
 
 confined in general to facts, 24. 
 
 opinions, when evidence, 25. 
 
 leadinji questions, when not allowed, 2"). 
 
 documents, how proved, 26, 27. 
 
 conviccion proved by certified copy, 41. 
 
 hearsay, when evidence, 26. 
 
INDEX. 
 
 Evidence — Continued, 
 
 for defendant in indictable cases, 61. 
 
 to be taken in writing, 26, 59. 
 Examination in indictable cases, 58. 
 
 mast be in presence of prisoner, 59. 
 
 depositions taken in writing, 59. 
 Examination and cross-examination — 
 
 in summary matters, right to, 25, 26, 27. 
 
 may be by counsel or attorney, 25, 26, 27. 
 
 re-examination, what confined to, 26. 
 Experts, opinions of, are evidence, 25. 
 
 85. 
 
 F. 
 
 First ofiFence in certam cases, 30. 
 Forms — 
 
 J. 1 and E. 1 not consistent with text, 36. 
 
 J. 2 is misleading, 37. 
 
 G. 
 
 Guilty, prisoner should not be asked if, 59. 
 
 H. 
 
 Husband and wife as witnesses, 19, 20. 
 
 Hearsay, when evidence, 26, 62. 
 
 Hard labour, when impossible, 31, 33, 35, 
 
 when not impossible, 33, 34. 
 Hearing, see Trial, Examination. 
 Holidays, warrants issuing on, 55. 
 
 I. 
 
 Idiots, not criminally responsible, 42. 
 Imprisonment — 
 
 as punishment or to enforce payment, 31, 3.5. 
 
 where statute authorizes, in defa,ult, 33. 
 
 where statute does not authorize, 34. 
 
 how terminated by payment. 34 37. 
 
 term of, how fixed, 34, 35. 
 
 term of, under Larceny Act, etc., 39. 
 
86 
 
 INDEX. 
 
 Impriaonment— Con(jnw«d. 
 
 not after part payment, etc., 35. 
 when not exceeding three months, 35. 
 when Minute must first be served, 29, 
 when imprisonment and fine imposable, 38. 
 when only in alternative, 35. 
 when calculated from, 39. 
 
 Indictable offences- 
 jurisdiction of J. P., 3, 49, 50, 51. 
 procedure, how regulated, 49. 
 confessions, when evidence. 60, 61. 
 evidence for defence, 61. 
 information, form, 52. 
 enforcing attendance of accused, 53. 
 summons, service, 54. 
 warrants, how executed, 54, 55. 
 backing warrants, 55. 
 appearance of accused, examination, 56 
 place of, not an open court, 56. 
 witnesses, compelling attendance, 57. 
 witnesses, refusing to swear, 57. 
 remands, when by warrant, 58. 
 bail during a remand, 58. 
 examination, procedure at, 59. 
 depositions taken in writing, 59. 
 cautioning the accused, 60. 
 statements of prisoner, when evidence, r)0. 
 confessions improperly obtained, 61. 
 dismissal of charge, 63. 
 commitment, 63. 
 bail, see bail. 
 
 Information or complaint — 
 in summary matters, 9. 
 distinction between, 7. 
 important parts of, 9. 
 description of offence, 9, 10, 11. 
 negativing exceptions, 9. 
 date of the offence, 9. 
 how the act was done, 10. 
 sworn to, when necessary. 11, 12. 
 in writing, when necessary, 12. 
 
INDEX. 
 
 Information or complaint— Continned. 
 
 who should lay, 12. 
 
 may be laid by counsel, etc., 12, 
 In indictable offences — 
 
 information or complaint, 52, 53. 
 
 necessary to give jurisdiction, 52. 
 
 must be on oath and in writing, 52. 
 
 description of offence, 53. 
 
 defects not fatal, 53. 
 
 ownership of property, 53. 
 
 warrant, only when on oath, 55. 
 
 87 
 
 J. 
 
 Joint offences, 39, 
 
 where penalty includes damages, 30. 
 fine must not be joint, 39. 
 rules as to imposing penalty, 40. 
 apportioning penalty and costs, 40. 
 Judge — 
 
 order for bail, 63, 64. 
 notice of application to, 68. 
 see Sureties for Peace, 71. 
 Jurisdiction, ses Justice of Peace — 
 
 in indictable cases based on complaint, 52. 
 to require sureties for peace, 67. 
 Justice of the Peace — 
 
 how created, tenure of office, 1. 
 oaths to be taken by, 1. 
 jurisdiction, by what given, 2, 
 in civil matters, wages, 2. 
 in assaults, 2. 
 
 in summary matters, 2, 3, 7, 8, 45, 72. 
 in indictable matters, 3, 49, 50. 
 territorial jurisdiction — 
 in summary casss, 8, 
 in indictable cases, 50, 51, 52. 
 what J. P. may hear the evidence, 13, 55. 
 what one J. P. may do, 13, 21, 72. 
 majority of justices may agree to, 21. 
 
88 
 
 INDEX. 
 
 i'i 
 
 m^' 
 
 Justice of the Feace—Contimied. 
 
 one J. P. nnleas statute requires two, 12, 21. 
 if interested or related, should not sit, 45. 
 bail, must not require unreasonable, 04. 
 offences punishable by, 72, 73, 74. 
 
 L. 
 
 Leading questions, see Evidence, 25. 
 Lost documents, how proved, 26. 
 Lunatics, criminal responsibility, 42. 
 
 M. 
 
 Married women, criminal responsibility, 42. 
 Modes of committing offence — 
 
 different modes may be alleged, 11. 
 
 should be set forth, 10. 
 Minute of conviction or order to be made, 29. 
 
 copy of minute of order to be served, 29. 
 
 N. 
 
 Negativing exemptions in information, 9. 
 
 not necessary to prove negation, 28. 
 No goods, return of, see lieturn, 33. 
 
 return where some but not enough, 33. 
 North West Territories — 
 
 J. P.'s in, jurisdiction not limited, 50. 
 
 " backing " warrants when not necessary, U), 33. 
 
 rules as to stating case, Appendix. 
 
 rules of court, stating a case, 75. 
 See Sureties for the peace, 71. 
 
 municipal officers not ex officio J. P.'s, 1. 
 Number of J. P.'s requisite, 12, 21. 
 
 what one may do, 13. 
 
 of witnesses requisite, 20. 
 
 0. 
 
 Oaths, form of, 24. 
 
 to be taken by justices, 1. 
 
 when information must be under, 12. 
 
 when children need not be sworn, 19. 
 
INDEX. 
 
 Offences puniHlmblo by J. P. 'a, 72, T.\, 74. 
 One offence only in Himio cliarj,'c, 11. 
 
 but may bo cbar^^ud in (lilferent moiloH, 11. 
 Open court in sunnnary caHos only, '21, 50. 
 Opinion, wlien ovidoncc, 'if). 
 Orders, liow dil'fer from convictionn, 27, 
 
 forma of, .'{(i-7. 
 
 copy of minute to be served, 'JD. 
 Ownersliip of property, liow stated, 11, 53. 
 
 89 
 
 Partners, bow described, 11. 
 Pt;ace, sureties to keep, ()!>. 
 
 Quakers, form of udirmation, 21. 
 
 P. 
 
 Q. 
 
 R. 
 
 llailwaya, offences on, venue, 51. 
 Eemand — 
 
 in summary matters, see Adjournment. 
 J indictable cases — 
 
 if not over 'A days may be verbal, 58. 
 if over 3 days must be by warrant, 58. 
 not to exceed 8 days at any time, 58. 
 bailing defendant during, 58. 
 Recognizance — 
 
 by defendant on adjournment, 23. 
 by defendant during remand, 58. 
 certifying non-appearance, 58. 
 to prosecute, 67, C8. 
 Bee Witnesses, Bail. 
 Eeligious scruples against swearing, 24. 
 Return of " no goods," 33. 
 Return of convictions, 42, 43. 
 
 Return of convictions by two justices, " immediate," 43. 
 Return of fines, etc., 43. 
 Rivers, offences on, venue, 51. 
 Rules of court — 
 
 as to stating a case (N.W.T.), 75. 
 Mca.S.C. 
 
90 
 
 INDKX. 
 
 m 
 
 m 
 
 m 
 
 
 s. 
 
 Search wivrninta, (W-OO. 
 
 Soivl, procoHH hIiouM hi' under, 1!l, '}rt. 
 
 wlicu nl)M(M\(Ui not ffitiil, in, T)"). 
 
 \vlu>ii limy 1)0 put on iiftorwanls, 18, 5o, 
 Hocouil olToiHU'M, 40. 
 
 prmiuuH nouviction inuHt \w chiirfji'd, 10. 
 
 proof of former ciiiivietioii by eopy, 41. 
 
 not till present olTeuee Ih'Mt proved, 40. 
 Sorvieeof pnu'esH — 
 
 of HummoiiH, 14. IM, r>4. 
 
 proof of service, 1 I, l.i. 
 
 hints as toHorvico, 15 
 Statiiii,' a ease. 4H, 44. 
 
 rules in N.W.'L'., o.osts. .'J/)/i(')(<//.r. 
 Snniniary Trials' .\et, 7'2. 
 
 olTenees punislial)li> hy .1. I'.'s, 7'J. 7M. 74. 
 Summary jurisdietiou of .1. 1\"h, ,\, 7, M, ['), I'. 
 Summons, form, Kl, r)4. 
 
 service of, hy wl'mn, 11, .")!. 
 Sundays, warrants on indictable cases may issue on, r)5. 
 Sureties for peace, see riiici'. 
 
 T. 
 
 Territory of a .T. P., moaniui; of, 8, .'iO. 
 Trial, '2:<. 
 
 in open court in summary matters, 21. 
 
 proceedings at, '2'.\. 
 
 " showiuf^ cause," what it is, "23. 
 
 examination of witnesses, rules. 25, 
 
 defence, 27. 
 
 reply, what evidence in, 27. 
 
 when no reply allowed, 27. 
 Trivial assaults, nuvy dismiss, 45. 
 Two justices, if statute re<]uires, 13. 
 
 to be present during whole trial, 21, 
 • returns by to be " immediate," 43. 
 
 list of matters triable by, 72. 
 
 where two justices necessai-y, 72, 73, 74. 
 
INDEX. 
 
 91 
 
 V. 
 
 Vftriaiioo bcitwnon olmr^»o and ovidonno, 10, 53, 
 Vciiiui ill Hiiimniiry ciihoh, H. 
 
 in iii(li('tal)l(! (iiiHdM.^nO, 51. 
 Vohhc'Ih, olToncoH in, vontio, 51. 
 
 w. 
 
 WaiviT of iri(<;4ularity, 2!), 41, 
 Warraiits — 
 
 for (lofomlant - 
 
 in (ifHt iiiHtanr.o, IH, 54, 55, 
 for (liHohoyint^ HinnmoiiH, 15, 54. 
 for witnoHHoH — 
 
 in (IrHt inHt,ini(;(\ 17,57. 
 aftor KnnniionH, IH, 57. 
 Hoansli warrant, (iH. 
 (liHtrosH warrant, hi'o DiKlrrtiH. 
 |K'a<u; wiirrant, hoo Peace. 
 of conmiitniont — 
 
 of witnoHH rcfiiHint^ to swear, IH, 57. 
 of witnoKH rofnHing to be bound, i\l. 
 And HOO Connnihiicitl. 
 information nnist iiavo been Hworn, V.i, r>'2. 
 only after summons, whoro complaint, 1)1. 
 bow executed, copy to bo servc'd, liJ, 55. 
 must bo Hif^ned and sealed, IH, 14, .W. 
 may be executed at any time, 15, 55. 
 where may bo executed, 10, 55. 
 backing, when necessary, 1(>, 33 55. 
 Witnesses— 
 
 summons for, how obtained, 17, 57. 
 warrant for, how obtained, 17, 57. 
 See Service. 
 disobeying summons, 18, 57. 
 refusing to bo sworn, etc., 18, 57. 
 refusing to be bound over, 67. 
 competent witness, who are, 19. 
 wife, when competent, 19, 20. 
 
^ 
 
 or 
 
 INDEX. 
 
 U ■ 
 
 u 
 
 V/itiiesaea— Continued, 
 
 criminality only affects credit, 20. 
 number of w.irranta necessary, 20. 
 must bo sworn or affirm, 21. 
 
 exception iv certain cases, 10, 21. 
 form of oath and affirmation, 24. 
 examination, cross-examination, etc., 2"). 
 experts, medical men, ojiinions, 2'). 
 not bound to criminate themselves, 20, 19. 
 for defendant in indictable cases, (il. 
 binding over to appear, (37. 
 committing; if refuse to be bound, 07. 
 who may be in indictable cases, 'A). 
 depositions to be written, rAh 
 
 form of, 59, 
 
 to be read and 8if,'ned, 59. 
 Writing, evidence and depositions to be in, 20, 59, 
 
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