Prosecutor may

be heard by

ney.

31. Every complainant or informant in any such counsel or attor case shall be at liberty to conduct the complaint or information, and to have the witnesses examined and cross-examined by counsel or attorney on his behalf.

In case the defendant does not appear, &c.

When defendant

has been apprehended, &c.

32. If, at the day and place appointed in and by the summons aforesaid for hearing and determining the complaint or information, the defendant against whom the same has been made or laid does not appear when called, the constable or other person who served him with the summons shall declare upon oath in what manner he served the said summons; and if it appear to the satisfaction of the Justice or Justices that he duly served the said summons, in that case such Justice or Justices may proceed to hear and determine the case in the absence of such defendant; or the said Justice or Justices, upon the non-appearance of such defendant as aforesaid, may, if he or they think fit, issue his or their warrant in manner herein before directed, and shall adjourn the hearing of such complaint or information until the said defendant be apprehended.

33. When the defendant has been apprehended under such warrant, he shall be brought before the same Justice or Justices, or some other Justice or Justices of the Peace for the same territorial division, who shall thereupon, either by his or their warrant (H), commit the defendant to the common gaol, house of correction, or other prison, lock-up house, or place of security; or, if he or they think fit, verbally to the custody of the constable or other person who apprehended him, or to such other safe custody as he or they deem fit; and may order the said defendant to be brought up, at a certain time and place, before such Justice or Justices; of which said order the complainant or informant shall have due notice.

pears, &c.

34. If, upon the day and at the place so appointed If defendant apas aforesaid, the defendant appears voluntarily in obedience to the summons in that behalf served upon him, or be brought before the said Justice or Justices by virtue of a warrant, then, if the complainant or informant, having had due notice as aforesaid, does not appear by himself, his counsel or attorney, the Justice or Justices shall dismiss the complaint or information, unless for some reason he or they think proper to adjourn the hearing of the same until some other day, upon such terms as he or they think fit; in which case such Justice or Justices may commit (D) the defendant in the meantime to the common gaol, house of correction, or other prison, lockup house or place of security, or to such other custody as such Justice or Justices think fit; or may discharge him upon his entering into a recognizance (E) with or without surety or sureties, at the discretion of such Justice or Justices, conditioned for his appearance at the time and place to which such hearing may be adjourned.

afterwards fails

35. If the defendant does not afterwards appear if defendant at the time and place mentioned in his recognizance, to appear, &c. then (in Upper Canada) the Justice who took the recognizance, or any Justice or Justices then there present, having certified (F) on the back of the recognizance the non-appearance of the defendant, may transmit the recognizance to the Clerk of the Peace for the territorial division in which the recognizance was taken, to be proceeded upon in like manner as other recognizances; and such certificate shall be deemed sufficient prima facie evidence of the nonappearance of the defendant.

If

appear, Justice

36. If both parties, either personally or by their if both parties respective counsel or attorneys, appear before the to hear and deJustice or Justices who are to hear and determine the complaint or information, then the said Justice

termine the case.

Proceedings on

the hearing of

informations.

or Justices shall proceed to hear and determine the same.

37. In case the defendant be present at the hearcomplaints and ing, the substance of the information or complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted, or why an order should not be made against him, as the case may be.

Justice may convict party if he

&c.

38. If he thereupon admit the truth of the inforadmit the truth, mation or complaint, and show no cause, or no sufficient cause, why he should not be convicted, or why an order should not be made against him (as the case may be), the Justice or Justices present at the said hearing shall convict him or make an order against him accordingly.*

If he does not

39. If he does not admit the truth of the inform

admit the truth, ation or complaint as aforesaid, the Justice or Justices shall proceed to hear the prosecutor or complainant, and such witnesses as he may examine, and such other evidence as he may adduce, in support of his information or complaint; and shall also hear the defendant and such witnesses as he may examine, and such other evidence as he may adduce in his defence; and also hear such witnesses as the prosecutor or complainant may examine in reply, if such defendant has examined any witnesses or given any evidence other than as to his (the defendant's) general character.t

Even where the particular statute under which the information is laid requires in terms that the offence be proved by the oath of one or more credible witnesses, it has been held that a defendant's confession is sufficient proof to satisfy the statute.

Though it may not be absolutely necessary in all cases of summary conviction, yet it is highly expedient for the evidence to be carefully taken down, and then read over to and signed by the witnesses, as well as the Justice, and for such evidence to be filed with the original information. It is usual in Justices' courts for one of the magistrates to officiate as Chairman, and take the lead in the management of the business; and it tends much to the satisfaction of the Bench, as well as the suitors of the court, when such Chairman, from his habits of business, is able and willing to take down the evidence himself, with a due

defendant not to

tions in reply

the upon the evi

dence, &c.

40. The prosecutor or complainant shall not be Complainant or entitled to make any observations in reply upon the make observaevidence given by the defendant; nor shall defendant be entitled to make any observations in reply upon the evidence given by the prosecutor or complainant in reply, as aforesaid.*

evidence, Justice

matter.

41. The Justice or Justices, having heard what After hearing each party has to say, as aforesaid, and the witnesses to determine the and evidence so adduced, shall consider the whole matter, and, unless otherwise provided, determine the same, and convict or make an order upon the defendant, or dismiss the information or complaint, as the case may be.t

regard to the rules of evidence, and the nature and extent of the testimony required to substantiate the case.

It is material that the witnesses should be sworn and examined in the presence of the prisoner (or defendant, if he appear to the summons), that he may confront them and prepare himself to cross-examine them; and should a witness be examined in the absence of defendant, and the defendant afterwards appear, it will not be sufficient to read over the deposition in the defendant's presence, but the witness must also be re-sworn. (R. v. Crowther, 1 T. R. 125).

In the examination of witnesses Justices should be particularly careful neither to ask nor permit the asking of leading questions, so as to suggest favorable answers on their examination on behalf of the party who seeks the benefit of their testimony; neither should any hear-say answers be accepted as evidence.

As the examination in chief of each witness for the prosecution is ended, the defendant should, in all cases of summary conviction, if present, be allowed and even invited to put questions to the witness, by way of cross-examination, with a view to elicit evidence in his own favor; and the prosecutor or complainant should then be allowed to re-examine the witness if necessary, in the same manner as is practised in the superior courts. When the prosecutor or complainant has produced all his witnesses, and their evidence has been heard, together with any other evidence which he may bring forward in support of the information or complaint, the case for the prosecution is closed, and the defendant (or his attorney, if he has one) should be called upon to address the court in his defence, and produce his witnesses.

Should the defendant call any witnesses in support of his defence, they should be sworn, and their evidence heard, together with any other evidence the defendant may bring forward, in the same manner as the witnesses for the prosecutor or complainant, who should be allowed, at the close of each witness's evidence, to cross-examine them.

By strictly following the directions given in this section, the Justice will not only save time to himself and all parties interested, but will be more likely to keep an orderly Court-room than if he permits the parties to talk as often as they see fit. If the parties are not represented by professional men, the Justice should, at the opening of the case, state that each party will have an opportunity at his discretion either before or after he calls his witnesses, of addressing the bench.

The decision of the Bench should be pronounced openly, in the presence of the parties, as well as of such of the public as may attend the hearing; and

If defendant is

convicted, a min.

42. If he or they convict or make an order against

ute to be made the defendant, a minute or memorandum thereof

gratis, and con

afterwards.

viction drawn up shall then be made, for which no fee shall be paid; and the conviction (I 1,3) or order (K 1, 3) shall afterwards be drawn up by the said Justice or Justices in proper form, under his or their hand and seal or hands and seals; and he or they shall cause the same to be lodged with the Clerk of the Peace, to be by him filed among the records of the General or Quarter Sessions of the Peace.*

Or if he dismiss the complaint, &c.

If information or complaint nega

tion.

43. If the said Justice or Justices dismiss the information or complaint, such Justice or Justices may, when required so to do, make an order of dismissal of the same (L) and shall give the defendant on that behalf a certificate thereof (M); which certificate, upon being afterwards produced, shall, without further proof, be a bar to any subsequent information or complaint, for the same matters respectively, against the same party.

44. If the information or complaint in any such tive any exemp- case negatives any exemption, exceptions, proviso or condition in the statute on which the same is framed, it shall not be necessary for the prosecutor or complainant to prove such negative, but the defendant may prove the affirmative thereof in his defence, if he would have advantage of the same.

in case of conviction being made, the fine to be imposed, together with the amount of costs, ought to be distinctly stated to the defendant, and also, where such is the prescribed course, the term of imprisonment awarded in case of default of payment; or that a distress warrant will be issued against the defendant's goods.

Generally a person, whether complainant or defendant, who thinks himself aggrieved by an order, decision or conviction of any Justice, may appeal to the Court of Quarter Sessions. It is not necessarily the duty of a Justice to give any information with regard to the right to appeal or the mode of appealing, but where a party is evidently dissatisfied with the decision, and is poor and ignorant, it might be proper as an act of charity to explain the necessary particulars, to enable him to avail himself of the privilege of appeal, otherwise he might unwittingly allow the proper opportunity to escape.