A Treatise on Criminal Law as Applicable to the Dominion of Canada

The jurisdiction is not ousted by the accused setting up a claim of right, which cannot by law exist. (a)

On the hearing of a complaint for assault, under the 32 & 33 Vic., c. 20, s. 43, if it be shewn that a bona fide ques tion as to the title to land is involved, the jurisdiction of the Justices is at once ousted, by s. 46, and the Justices cannot proceed to enquire into, and determine by summary conviction, any excess of force alleged to have been used in the assertion of title. (b) The matter may still be disposed of by indictment, if it be a proper case for such a proceeding. (c)

A complaint under s. 43 cannot be withdrawn by the complainant, even with the consent of the Justice. (d) The reason why the complainant is prevented from with drawing the charge before the Magistrate is, that he has made it a public matter, and that the person charged has the right to have it tried, and because, also, the complainant has made his election to have the case so disposed of, from which he cannot withdraw. (e)

If Justices hear the case but decline to conclude it, as they should have done, they will be ordered to hear it. (f) So if they refuse to hear the whole case, and dismiss the summons. (g) But if Justices, in their own discretion, refuse to hear a complaint which is the subject of an indictment, the Court will not compel them to go on. (h)

The fact that the defendant pleads guilty to the charge cannot deprive the Justice of the discretion he has to adjudicate on the case, under s. 46.

(a) Hudson v. McRae, 4 B. & S. 585; 33 L. J. (M. C.) 65.

(b) Reg. v. Pearson, L. R. 5 Q. B. 237.

(d) Re Conklin, 31 U. C. Q. B. 160.

(e) Ib. 168, per Wilson, J. See also Tunnicliffe v. Tedd, 5 C. B. 553; Vaughton and Bradshaw, 9 C. B. N. S. 103.

(f) Rex v. Tod, Str. 531.

(g) Rex v. Justices Cumberland, 4 A & E. 695.

(h) Reg. v. Higham, 14 Q. B. 396; Re Conklin, supra, 167, per Wilson, J.

The adjudication means the Justice's final judgment or sentence to be pronounced. (a) If the Justice adjudicate, the defendant will be entitled to the certificate, under s. 44, and if he do not adjudicate, there will be no certificate, and so there will be no bar to any subsequent proceedings. (b) There is no right to a certificate unless there has been a hearing upon the merits. (c)

A certificate under s. 44, given by a Justice on a charge of assault and battery, is a defence to an indictment, founded on the same facts, charging an assault and battery, accompanied by malicious cutting and wounding, so as to cause grievous or actual bodily harm. (d) So, a former conviction by a Justice is a bar to an indictment for felonious stabbing. (e) The certificate is also a bar to an indictment for assault, with intent to commit rape. (ƒ)

One C. appeared to an information charging him with an assault, and praying that the case might be disposed of summarily, under the Statute. The complainant applied to amend the information by adding the words "falsely imprison." This being refused, the complainant offered no evidence, and a second information was at once laid, including the charge of false imprisonment. The Magistrate refused to give a certificate of dismissal of the first charge, or to proceed further thereon, but endorsed on the information "Case withdrawn by permission of Court, with the view of having a new information laid”:-Held, that the information might be amended, but, as the original was under oath, that it must be re-sworn. Semble, under the circumstances, the more correct course would have been to go on with the original case, and, under s. 46, to refrain from adjudicating. (g)

(a) Re Conklin, 31 U. C. Q. B. 166, per Wilson, J.

(b) Ib. 166, per Wilson, J.; Hartley v. Hindmarsh, L. R. 1 C. P. 553.

(d) Ib. 165, per Wilson, J.; Reg. v. Ebrington, 1 B. & S. 688.

(e) Reg. v. Walker, 2 M. & Rob. 446; Re Conklin supra, 165, per Wilson, J. (f) Ib.; Re Thompson, 6 H. & N. 193; 6 Jur. N. S. 1247.

(g) Re Conklin, supra, 160.

Justices of the Peace have no jurisdiction to convict summarily, at common law, in any case, but, in all cases, a direct legislative authority must be shewn, or the conviction will be illegal. (a)

At common law, Justices had no summary jurisdiction to try complaints for assaults. That jurisdiction was derived solely from the 4 & 5 Vic., c. 27, s. 27. It seems that, under the 32 & 33 Vic., c. 20, s. 43, the prayer for summary jurisdiction should appear on the face of the conviction. (b)

The 32 & 33 Vic., c. 31, as amended by the 33 Vic., c. 27, confers power on Justices to convict summarily, in certain cases, and prescribes the duties of Justices of the Peace out of sessions, in relation to summary convictions and orders. Under s. 5,, of this Statute, a variance between the information, complaint, or summons, and the evidence adduced on the part of the informant, or complainant, is not fatal if the defendant has not been deceived or misled thereby, or has no defence on the merits. (c)

The object of the Legislature, in this provision, seems to have been to prevent the failure of justice in cases where, by the old law, very great technical precision was required, and that before a tribunal where great legal accuracy could hardly be expected. (d) It may be doubtful, under the terms of the section, whether the question of the party having been misled is not merely for the discretion of the Justices, as to the adjourning the hearing to a future day. (e)

On an information for selling spirituous liquors without a license, contrary to the by-laws of the Town of

(a) Bross v. Huber, 18 U. C. Q. B. 286, per Robinson, C. J.

(b) Re Switzer, 9 Ú. C. L. J. 266.

(e) Ib. 284, per Carter, C. J.

Moncton, the illegal sale was proved, but there was no evidence of the by-laws, and the Justices convicted the defendant of selling, contrary to the Statute to regulate the sale of spirituous liquors, 17 Vic., c. 15, :-Held, that, as it did not appear that the defendant was misled, or had any defence on the merits, the variance between the information and the conviction was not fatal, since the (N. B.) Rev. Stat., c. 138, s. 1, which is, in substance, the same as s. 5 of the present Act. (a)

But it would seem that this section must be held to apply only to informations made by persons who have authority to make them, and not to give vitality to an information made by a person without any authority, and, in fact, to give the Justice jurisdiction over the matter when otherwise he would not have it. (b)

A Justice has no authority, either under the 32 & 33 Vic., c. 30 or c. 31, to issue a summons or warrant for the arrest of a party without an information properly laid. The laying of the information is necessary to give the Justice jurisdiction, even where a crime is committed over which he might have jurisdiction. (c)

It is the duty of a Justice to have an information laid, and, when properly laid, he has power over a person, to bring him up to answer a charge. (d)

An information, by a person who has no authority to make it, is the same as no information, and does not authorize the issue of a summons or warrant. (e)

An information, to be tried before two Justices, is good, though only signed by one. (f)

(a) Ex parte Dunlap, 3 Allen, 281.

(b) Ex parte Eagles, 2 Hannay, 54, per Ritchie, C. J.

(c) See Appleton v. Lepper, 20 U. C. C. P. 142, per Hagarty, J.; Powell v. Williamson, 1 U. C. Q. B, 154; Friel v. Ferguson, 15 U. C. C. P. 584; ez parte Eagles, 2 Hannay, 53-4, per Ritchie, C. J.

(d) Connors v. Darling, 23 U. C. Q. B. 546, et seq., per Hagarty, J.

(e) Ex parte Eagles, supra, 54, per Ritchie, C. J.

(f) Falconbridge q. t. v. Tourangeau, Rob. Dig. 260.

Unless a Statute require that the information should be in writing, or on oath, it need not be so. (a)

Where power is given, by an Act, to a Justice to issue a summons upon complaint made on oath, and the party to be summoned appears and defends the suit, without any summons being issued, he cannot afterwards object that there was no complaint on oath, that being only a preliminary step to authorize the summons to issue. (b)

A complaint charging a "clandestine removal of property" does not justify or require the issuing of a warrant, as for a criminal offence, and the utmost that it does justify is the issuing of a summons under the Act relating to petty trespasses. (c)

If a Statute gives summary proceedings for various offences, specified in several sections, an information is bad which leaves it uncertain under which section it took place. (d)

Where a Statute creates several offences, one of which is charged in an information, a conviction of another offence, the subject of the same penalty, will be bad. In a prosecution under the Con. Stats. L C., c. 6, the conviction must exactly conform to the charge in the information. (e)

In a complaint for breach of a by-law, it is not necessary to insert the by-law itself, or to make a distinct allegation that it is in force.

A complaint may be made and a summons issued for two offences, provided the defendant has not been arrested in the first instance, and a conviction for one of such offences specifying it is valid. Service of a copy of a sum

(a) Friel v. Ferguson, 15 U. C. C. P. 594; Re Conklin, 31 U. C. Q. B. 168, per A. Wilson, J.; see s. 24.

(b) Ex parte Wood, 1 Allen, 422. This case was on a local act, 6 Wm. 4, c. 44, as to recovery of seamen's wages.

(c) McNellis v. Gartshore, 2 U. C. C. P. 471, per McLean, J. (d) Thompson and Durnford, 12 L. C. J. 287, per Mackay, J. (e) Ib. 285.

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