or actually resident within any district for which he is appointed; (1) and the police magistrates so appointed have and exercise all the powers and authority, rights and privileges appertaining to police magistrates of cities (except as regards offences against municipal by-laws and as regards other purely municipal matters), and all the powers and authority, rights and privileges appertaining to justices of the peace generally. (2)

In Nova Scotia.-Upon the report of a committee appointed upon petition in that behalf by the General Sessions of any county or district in the Province of Nova Scotia, any place mentioned in and assigned by such report may, after compliance with certain formalities, be formed into a police division, to which one or more stipendiary justices are appointed from among the justices of the peace residing within the limits of such police division, the selection being made by the majority of such justices assembled at a meeting specially called for that purpose by the clerk of the peace; and the stipendiary justice or justices so selected, or one of them, acts as a police court within the limits of the said division whenever occasion requires or he or they think necessary. (3)

In Manitoba.-In Manitoba the Lieutenant-Governor in Council may appoint one or more police magistrates, and may define the territorial limits of their separate and respective jurisdictions. (4)

In Keewatin.-The Governor-General in Council may appoint, by commission under the great seal, one or more fit and proper persons as stipendiary magistrates within the district of Keewatin; and every such stipendiary magistrate exercises within the district of Keewatin, or within such limited portion of the same as is prescribed by the Governor-General in Council, the powers appertaining to any justice of the peace, or to any two

(1) R. S. Q., Arts. 2490, 2491.

(2) Ib., Art. 2492.

(3) R. S. N. S. (1864), c. 128, as amended and contained in Appendix A, R. S. N. S. (1884), pp. 15-16.

(4) R. S. Man. (1891), c. 93, sec. 2.

justices of the peace, under any laws or ordinances in force from time to time in that district. (1)

In British Columbia.-In British Columbia stipendiary magistrates may be appointed by the Lieutenant-Governor in Council, to act as such for any county or electoral district in the Province, or for any less extensive jurisdiction. (2)

Every person appointed a stipendiary magistrate in British Columbia must take the oaths of office and of allegiance within thirty days from his appointment (unless such time is extended by the Lieutenant-Governor in Council), or his appointment absolutely ceases and determines. (3)

In the North-West Territories.-In the NorthWest Territories, the judges of the Supreme Court of the territories are vested with all the powers, authority and jurisdiction of stipendiary magistrates; and the Governor General in Council may appoint police magistrates in the Territories with all the powers of two justices of the peace under any law in Canada; but no person can be so appointed unless he has practiced as an advocate, barrister or solicitor in Canada for three years, or unless he is a magistrate of three years standing in Canada.. (4)

CHAPTER III.

THE POWERS, DUTIES, AND RESPONSIBILITIES OF JUSTICES OF THE PEACE AND POLICE MAGISTRATES.

Nature and extent of their powers.-The general powers of justices of the peace are derived from the commission of the peace which is addressed to and assigns the persons therein named jointly and severally to keep the, peace in a particular

(1) R. S. C., c. 53, s.s. 24, 25.

(2) 55 Vic. (B. C.), c. 29, sec. 5.

(3) 55 Vic. (B. C.), c. 29, sec. 9. For the forms of oath of office and allegiance, see pp. 12, 13, ante.

(4) R. S. C., c. 50, sec. 54; 57 & 58 Vic. c. 17, sec. 7.

county, district, city, or place, with all the powers and privileges by law and of right appertaining to the office of justice of the peace.

Besides the general powers which they derive from the commission of the peace, which include all the powers of the ancient conservators of the peace, at the common law, to suppress riots, to take securities for the peace and to apprehend and commit criminal offenders, there are many other powers and duties, (including the holding of special sessions for the granting of licenses and other special business), which by virtue of general and local legislation, devolve upon justices of the peace, and in the exercise of which they have sometimes civil as well as criminal jurisdiction. In their civil jurisdiction are included cases in which they are called upon to hear and determine complaints between masters and servants, and claims for assessments, rates, and other matters of a similar nature, under provincial Acts and civic and municipal by-laws. But their most important functions are those which they exercise in criminal matters; and these are so extensive that, while, as a general and almost invariable rule, the case of every person accused and brought to trial upon an indictment must, in the first instance, have been enquired into before a magistrate or a justice of the peace, and have been by him sent for trial, and while, in the general or quarter sessions of the peace, certain Magistrates, have (under Article 539 of the Code), jurisdiction.— concurrently with the Superior Courts of criminal jurisdiction,— to try a great many indictable offences, and while, moreover, exclusive jurisdiction is given, in some cases to a single justice, and, in others, to two justices, to try and determine, in a summary manner, out of sessions and without the intervention of a jury, a multitude of offences which are not indictable, and which are punishable either under the Criminal Code and other statutes of Canada, or under the statutes of the different provinces, or the by-laws of cities. towns and municipalities, they have, also, under special conditions, the right to summarily try and dispose of some offences which, in the absence of such special conditions, are indictable.

It will be readily seen that the jurisdiction and powers of justices of the peace are in some cases anciliary to-whilst in others they

are substituted for-those of a superior tribunal; and their acts are either ministerial or judicial. In so far as their acts relate to the preservation of the peace, the preliminary investigation of indictable offences triable by another tribunal, the issuing of a summons or a warrant, the binding over of the parties to prosecute or of the witnesses to give evidence, the admission of the accused to bail, or committing him for trial, they are ministerial acts; but with regard to offences over which they exercise summary jurisdiction, their acts are both ministerial and judicial: ministerial, in causing the offender to be brought before them, and judicial, in hearing and examining the evidence and in determining the case; the test of an act being ministerial or judicial being whether the justices are entitled to withhold their assent, if they think fit, or whether they can be compelled, either by mandamus or by a rule in the nature of a mandamus, to do the act in question. (1)

The judicial acts of a justice must be done within the territorial limits of the district, county or place for which he is appointed; (2) unless he be specially authorized by statute or otherwise to exercise his judicial functions elsewhere. The judicial acts of a justice (who is not so specially authorized) are, when done outside of the territory for which he is appointed, absolutely null and void. (3)

In the absence, however, of evidence to the contrary, a magistrate will be presumed to be acting within the territorial limits of his jurisdiction. (4) And, with regard to acts which are merely ministerial, the rule is that they may always be done by a justice beyond the limits of his district. (5)

(1) Per Wightman, J., in Staverton v. Ashburton, 24 L. J. M. C. 53; 4 El. & B. 526.

(2) R. v. Totness, 18 L. J. M. C. 46; R. v. Stockton, 7 Q. B. 520; R. v. Newton Ferrers, 9 Q. B. 32; R. v. Holborn, 6 E. & B. 715; 59 L. J. M. C. 110; Newbould v. Coltman, 6 Exch. 189; 20 L. J. M. C., 149, 151, 152.

(3) Helier v. Benhurst, Cro. Car. 211; R. v. All Saints, Southampton, 7 B. & C. 785; Bosanquet v. Woodford, 5 Q. B. 310; R. v. Hughes, 5 Russ. & Geld. 194; R. v. Beemer, 15 Ont. R. 266,

(4) R. v. Fearman, 22 Ont. R. 456.

(5) R. v. Stainforth, 11 Q. B. 66; Langwith v. Dawson, 30 U. C. C. P. 375.

The powers given to justices by statute law must be exercised by them in strict accordance with the statutes by which the powers are given and under which they act. In other words, their statutory powers must be given to them in express terms, and not by mere inference. At common law, justices of the peace have no jurisdiction to convict summarily in any case. It is not because a . statute creates an offence that justices have power to try it. Distinct legislative authority to deal with it summarily must be given to them. (1) But where, owing to some omission in a statute, the power to summarily try and convict is not given in express words, the justices may still proceed, if from the rest of the statute it may be reasonably implied that such jurisdiction was intended to be given to them. Thus, where a statute declared that any person exposing, in a public place where animals are commonly exhibited for sale, any animal infected with a contagious or infectious disease, should be deemed guilty of an offence and be liable to pay a penalty, it was held that, although there were no express words making the penalty recoverable by summary procedure, a jurisdiction to deal summarily with offences under the statute was impliedly conferred upon justices. (2)

Where the statute prescribes any particular justice or description of justice, the justice must be shown to come within that description. (3)

Whenever the concurrence of two or more justices is requisite, the general rule is that they must be present, acting together, during the whole of the hearing and determination of the case. (4) And where a view is required to be had by two justices, it should be a joint view. (5) Where more than two justices are acting

(1) Ayard v. Cavendish, Saville, 134; Bross v. Huber, 18 U, C. Q. B. 286; R. v. Carter, 5 O. R. 651.

(2) Cullen v. Trimble, L: R., 7 Q. B. 416; 41 L. J. M. C. 132; Johnson v. Colam, L. R., 10 Q. B. 544; 44 L. J. M C. 135; Greenw. & M. Mag. G., 1; Pal. Sum. Conv., 6 Ed., 15.

(3) R. v. Broadhurst, 32 L. J. M. C. 168.

(4) Billings v. Prinn, 2 Bla. Rep. 1017; R. v. Arnold. 1 Str. 101. See also sub-sec. 6 of Art. 842 of the Code, post.

(5) R. v. Cambridgesh. J. J., 4 A. & E. 111.