Warrant of deliverance. Warrant for to abscond. Delivery of accused to keeper under warrant. The assignment of that period by the statute is a declaration that in the absence of any special reason to the contrary, the prosecutor having had his vigilance excited by the prayer of the defendant in open court, should be allowed that period for preparing and getting up the case for the Crown, without having the safe custody of the prisoner interfered with. R. v. McCartie, 11 Ir. C.L. 194. Where a habeas corpus has been issued, the court has power to admit persons to bail when accused of any felony, including murder. R. v. Fitzgerald, 3 U.C.R. (O.S.) 300; R. v. Higgins, 4 U.C.R. (O.S.) 83. 702. Whenever any justice or justices admit to bail any person who is then in any prison charged with the offence for which he is so admitted to bail, such justice or justices shall send to or cause to be lodged with the keeper of such prison, a warrant of deliverance under his or their hands and seals, requiring the said keeper to discharge the person so admitted to bail if he is detained for no other offence, and upon such warrant of deliverance being delivered to or lodged with such keeper, he shall forthwith obey the same. 55-56 V., c. 29, s. 605. 703. Whenever a person charged with any offence has been bailed in manner aforesaid, it shall be lawful for any justice, if he sees fit, upon the application of the surety or of either of the sureties of such person and upon information being made in writing and on oath by such surety, or by some person on his behalf, that there is reason to believe that the person so bailed is about to abscond for the purpose of evading justice, to issue his warrant for the arrest of the person so bailed, and afterwards, upon being satisfied that the ends of justice would otherwise be defeated, to commit such person when so arrested to gaol until his trial or until he produces another sufficient surety or other sufficient sureties, as the case may be, in like manner as before. 55-56 V., c. 29, s. 606. Grounds for belief.]-The informant should not merely pledge his oath that there is reason to believe that the person bailed is about to abscond, but set forth the grounds for so believing; and the magistrate is to judge as to the sufficiency of the grounds of suspicion proved before him. Commitment.]-The warrant of commitment under this section should specify, as does the section itself, that the gaoler is to receive the accused into custody in the common gaol, and him, there safely to keep until his trial, or until he produces another sufficient surety or sureties in this behalf. 704. The constable or any of the constables, or other person to whom any warrant of commitment authorized by this or any other Act or law is directed, shall convey the accused person therein named or described to the gaol or other prison mentioned in such warrant, and there deliver him, together with the warrant, to the keeper of such gaol or prison, who shall thereupon give the constable or other person delivering the prisoner into his custody, a receipt for the prisoner, setting forth the state and condition of the prisoner when delivered into his custody. 2. Such receipt shall be in form 30. s. 607. 55-56 V., c. 29, Form. Accused in custody.]—By sec. 577 any court of criminal jurisdiction in Canada is competent to try all offences wherever committed (in the same province) if the accused is found or apprehended or is in custody within the jurisdiction of such court. A magistrate may hold a preliminary enquiry in respect of an indictable offence committed in the same province outside of his territorial jurisdiction, if the accused is, or is suspected to be, within the limits over which such magistrate has jurisdiction, or resides or is suspected to reside within such limits. Code sec. 653; R. v. Burke (1900), 5 Can. Cr. Cas. 29. But the magistrate instead of proceeding with the preliminary enquiry may, in his discretion, direct in case the offence was committed outside of the territorial limits of his jurisdiction that the accused be transferred there for the purpose of preliminary enquiry. Code sec. 665. PART XV. SUMMARY CONVICTIONS. Definitions. 'Territorial division.' 'The court.' 'District,' 'county.' 'Common gaol.' 'Clerk of the peace.' Interpretation. 705. In this Part, unless the context otherwise requires,(a) 'territorial division' means district, county, union of counties, township, city, town, parish or other judicial division or place; (b) 'the court' in the sections of this Part relating to justices stating or signing cases means and includes any superior court of criminal jurisdiction for the province in which the proceedings in respect of which the case is sought to be stated are carried on; (c) 'district' or 'county' includes any territorial or judicial division or place in and for which there is such judge, justice, justice's court, officer or prison as is mentioned in the context; (d) 'common gaol' or 'prison' for the purpose of this Part means any place other than a penitentiary in which per: sons charged with offences are usually kept and detained in custody; (e) 'clerk of the peace' includes the proper officer of the court having jurisdiction in appeal under this Part, and, in the province of Saskatchewan or Alberta, and in the Northwest Territories, means the clerk of the Supreme Court of the judicial district within which conviction under this Part takes place or an order is made. R.S., c. 50, s. 102; 55-56 V., c. 29, ss. 839 and 900. The summary convictions clauses.]-Unless the context otherwise requires, a reference in any Act to the Summary Convictions Act shall be construed as a reference to Part XV. of the Criminal Code. The Interpretation Act, sec. 29. Proceedings before “a justice."]—Where the expression "a justice" is used in the Code the word "justice" means a justice of the peace, and includes two or more justices, if two or more justices act or have jurisdiction, and also a police magistrate, a stipendiary magistrate and any person having the power or authority of two or more justices of the peace. Code sec. 2 (18). A stipendiary magistrate is none the less a justice of the peace because he receives a stipend, nor is he any the less a justice because the policy of the legislature has been to give him the powers of two justices in order to facilitate the transaction by him of the business which would otherwise fall on the other justices. R. v. McFadden (1885), 6 N.S.R. 426. Disqualification of justices.]-A justice of the peace is not disqualified by the fact that he and the counsel for the prosecution are partners in the business of attorneys provided they have no joint interest in the fees earned by the counsel for the prosecution or in any fees payable to the justice on the trial of the information. Neither is it a ground of disqualification that the justice was appointed and paid by the town council at whose instance the complaint was made and the prosecution carried on, his salary being a fixed sum, not dependent on the amount of fines collected. R. v. Grimmer, in Re Macdonald (1886), 25 N.B.R. 424. Every person having a personal interest in any litigation, or having a direct or indirect motive for desiring a particular decision to be come to, should abstain from putting himself in such a position as that unconsciously to himself a bias adverse to the due administration of justice might take possession of his mind. R. v. Justices of Great Yarmouth (1881), L.R. 8 Q.B.D. 525; R. v. Chapman (1882), 1 Ont. R. 582. A magistrate who is engaged in the same kind of business as a trader prosecuted under a transient traders' license law is thereby disqualified from adjudicating upon the charge. R. v. Leeson (1901), 5 Can. Cr. Cas. 184 (Ont.). Defendant was convicted of a breach of a by-law in selling land by auction without license; two of the four convicting justices were licensed auctioneers for the county and persisted in sitting after objection taken on account of interest, though the case might have been disposed of by one justice. It was held that they were indirectly interested in the result of the case, in so far as it was to their interest either to limit the number of persons acting as auctioneers in the town, or to confine the business of selling lands by auction to persons holding, as they did, auctioneer's licenses, and the conviction was quashed with costs against the two justices. R. v. Chapman (1882), 1 Ònt. R. 582. The magistrate must not unite in his own person the functions of judge and prosecutor. Monson's Case, [1894] 1 Q.B. 750. If a prosecution be brought for the benefit of a small class of privileged persons, of whom the magistrate is one, the conviction will be quashed on the ground of the pecuniary interest of the justice. R. v. Huggins, [1895] 1 Q.B. 563; R. v. Steele, 26 Ont. R. 540. But if the ordinary members of the society or association on whose behalf the prosecution is brought have no control over or responsibility for any prosecution brought by the society, the fact that the magistrate is one of the ordinary members will not suffice to disqualify him. Allinson v. General Council, [1894] 1 Q.B. 750. So where a prosecution was brought at the instance of the Incorporated Law Society, and a conviction obtained for falsely pretending to be a solicitor, but no part of the fine was payable to the society, it was held that the fact of one of the magistrates being a member of the society furnished no reasonable ground for supposing that he was biased, nor did it constitute him a party on whose behalf the prosecution was taken or give him a pecuniary interest therein, although the society was under the liability of having an order for costs made against it. R. v. Burton, [1897] 2 Q.B. 468; R. v. Mayor of Deal, 45 L. T. 439. The fact that a qui tam action is pending against the magistrate at the suit of the father of the accused is not a sufficient ground of bias. parte Thomas Gallagher (1897), 33 C.L.J. 547. Ex The relationship, subsisting because of being married to sisters, between the magistrate and the chief inspector of licenses, who was the informant and prosecutor in the proceedings in which the conviction was made, will not disqualify the magistrate from hearing the case. R. v. Major (1897), 33 C.L.J. 162 (S.C.N.S.). Where one of the magistrates trying several connected charges of assault was married to a first cousin of one of the complainants, and the other complainants were acting as servants of the related complainant in the matter in which the assault arose, all the convictions were set aside on the ground of affinity. Campbell v. McIntosh (1872), 1 P.E.I. Rep. 423. The justice of the peace before whom the information was laid, and who issued the summons was alleged to be interested; but the hearing took place before, and the adjudication and conviction were made by another justice whose qualification was not attacked, while the defendant pleaded to the charge and raised no objection to the validity of the proceedings until the application for a certiorari; it was held that the conviction could not be impugned. (R. v. Gibbon, 6 Q.B.D. 168, distinguished); R. v. Stone (1892), 23 Ont. R. 46. Where the defendant's wife was the widow of the committing magistrate's deceased son, it was held that there was no relationship by affinity between the magistrate and the defendant to disqualify the magistrate from hearing the case. Ex parte William Wallace (1887), 25 N.B.R. 593. A magistrate is not disqualified from trying a case by reason of the fact that his salary is paid out of a municipal fund largely made up of fines imposed for the infraction of the statute under which the charge is laid; nor because of his being a ratepayer of the municipality to which, in case of conviction, the fine would be payable. Ex parte Driscoll, 27 N.B.R. 216; Ex parte Flannagan, 34 N.B.R. 326, 2 Can. Cr. Cas. 513; Ex parte Gorman (1898), 4 Can. Cr. Cas. 305 (N.B.); R. v. Fleming, 27 Ont. R. 122; Ex parte McCoy (1896), 1 Can. Cr. Cas. 410 (N.B.); R. v. Hart (1887), 2 B.C.R. 264. The fact that a convicting justice for an offence against the provisions of the Liquor License Act, 1896, is an inspector under the Act, but not for the district where the offence is alleged to have been committed, is not such an interest as to disqualify him. Ex parte Michaud (1896), 4 Can. Cr. Cas. 569, 34 N.B.R. 123. When the magistrate's position would be a good ground of challenge to a juror for favour, he is disqualified to act. Ex parte Wallace, 27 N.B.R. 174; Ex parte Jones, 27 N.B.R. 552; Ex parte Hannah Gallagher (1898), 4 Can. Cr. Cas. 486 (N.B.). It is sufficient to shew that the magistrate might have been influenced, and it need not appear that he was in fact influenced. R. v. Milledge, 4 Q.B.D. 332; R. v. Gaisford, [1892] 1 Q.B. 383. A magistrate is disqualified from trying an information for an offence punishable on summary conviction where there is a bona fide action pending against him brought by the husband of the accused for alleged malicious conduct as a judicial officer and for assault. Ex parte Hannah Gallagher (1898), 4 Can. Cr. Cas. 486. If the action against the justice is not bona fide but a mere sham to attempt to disqualify him, its pendency will not operate as a disqualification. Ibid.; Ex parte Scribner, 32 N.B.R. 175. The disqualification of a justice arising from an action pending against him ceases when he has recovered judgment, though an execution has issued which is unsatisfied. Ex parte Ryan (1894), 4 Can. Cr. Cas. 485 (N.B.). With the exception of where a magistrate acts upon view of an offence, he should not be a promoter of the prosecution, or be interested personally in the matter he is called on magisterially to investigate. It is contrary to |