33 Vic., c. 27, s. 2, which enacts that in such case no certiorari shall issue :-Held that, although the conviction was clearly bad, the Court could not quash it, for the case was one in which the Justice had jurisdiction, and the Court were not asked to do anything to enforce the conviction, and no motion had been made to quash the certiorari. (a) It would seem that a conviction by a Justice may be quashed, unless it is sealed. (b) A conviction will be quashed, if it appears that the offence was for a felony, and that the defendant was not put on his defence, or allowed to cross-examine the witnesses. (c) A conviction will be quashed, if the summons states no place where the offence was committed, although the place appear on the face of the conviction. (d) But under the 14 & 15 Vic., c. 95, a conviction by a Justice, awarding imprisonment, and also for damages and costs, will be sustained. (e) The Court will not give costs against a public officer, on quashing a conviction. (ƒ) It seems the Court have no power to allow costs in quashing a conviction. (g) Where Justices have power to award costs, on a summary conviction, they must specify the amount. (h) The Justices' Summary Convictions Act (N. B.) 12 Vic., c. 31, gave no general power to award costs on convictions; and, on convictions under this Act, they can only (a) Reg. v. Johnson, 30 U. C. Q. B. 423. (b) Haacke v. Adamson, 14 U. C. C. P. 201. See also M'Donald v. Stuckey, 31 U. C. Q. B. 577; 32 & 33 Vic. c. 31, s. 42. (e) Ex parte Lindsay, Rob. Dig. 73. (d) Ex parte Leonard, 6 L. C. Ř. 480. (f) Ex parte De Beaujeu, 1 L. C. J. 15. be awarded when given by the Statute creating the offence. (a) A conviction is bad, which orders imprisonment in default of immediate payment of a sum of money, when the by-law, upon which it is based, is in the alternative, imposing a fine or imprisonment. A conviction is also bad which gives costs, when the by-law upon which it is based gives no jurisdiction as to costs. (b) A judgment for too little is as bad as a judgment for too much; and a conviction for one month instead of two months is, therefore, bad. (c) An information or complaint may be amended; but if on oath, it must be re-sworn. (d) A conviction, inflicting one penalty for two offences, is bad. (e) Where the defendant is summarily convicted, at one time, of several offences, the Justice has power, under 32 & 33 Vic., c. 31, s. 63, to award that the imprisonment, under one or more of the convictions, shall commence at the expiration of the sentence previously pronounced. (ƒ) Under the 7 & 8 Geo. 4, c. 28, the practice of the Judges was, where more than one case of felony was established against a man, and he was convicted of them at one and the same time, to make the sentence of imprisonment for the two or three offences, as the case might be, commence at the expiration of the sentence first awarded. (g) Judgment may be rendered by two Justices of the Peace, in a case heard by three, when, by the Statute, (a) Ex parte Clifford, 3 Allen, 16. (b) Ex parte Marry, 14 L. C. J. 163. (c) Ex parte Slack, 7 L. C. J. 6. (d) Re Conklin, 31, U. C. Q. B. 160. (e) Corignan v. Harbour Comrs. Montreal, 5 L. C. R. 479. (f) Reg. v. Cutbush, L. R. 2 Q. B. 379. (g) Ib. 382, per Cockburn, C. J. one Justice might have heard and determined the case. (a) It seems that, where a Statute directs Justices of a division to do a certain act, any Justice of the county may do it. So, also, where Justices in or near a place are empowered (b) Where a Statute empowers two Justices of the Peace to convict, a conviction by one only is not sufficient. (c) The 32 & 33 Vic., c. 30, defines the duties of Justices of the Peace, out of Session, in relation to persons charged with indictable offences. When a person accused of felony, committed in Canada, is brought up before a Justice for examination, and discharged by the Justice, such discharge does not operate as a bar to the same person being again brought up before another Justice, and committed upon the same charge, upon the same or different evidence. (d) On charges of indictable offences, the Justice must proceed in the manner pointed out by the 32 & 33 Vic., c. 30, s. 29, et seq.: witnesses must be examined against the defendant, as prescribed by the Statute; for even if a party is examined before the Magistrate, yet if the prosecutor does not appear, and no witnesses are examined, the commitment will be illegal. The plaintiff was arrested upon a warrant issued by the defendant, a Magistrate, and brought before him. Defendant examined the plaintiff, but took no evidence, said he could not bail, and committed the plaintiff to gaol, on a warrant reciting that he was charged before him, on the oath of W. H., with stealing. The plaintiff did not ask to have any hearing or investigation, or produce, or offer (a) Ex parte Trowley, 9 L. C. J. 169. See Ex parte Brodeur, 2 L. C. J. 97. (b) Reg. v. Wheten, 3 Allen, 269. (c) Re Crow, 1 U. C. L. J. N. S. 302; 1 L. C. G. 189. (d) Reg. v. Morton, 19 U. C. C. P. 26, per Gwynne, J. to procure, any evidence on his behalf, or to give bail to the charge :-Held, that the commitment, without appearance of the prosecutor, or examination of any witnesses, or of the plaintiff, according to the Statute, or any legal confession, was an act wholly without, or in excess of, the jurisdiction of the Magistrate, and illegal. (a) Where a Justice commences the examination of a party on a criminal charge, and after hearing a portion of the evidence, refuses to proceed further, the prosecutor may, nevertheless, prefer an indictment against the prisoner before a Grand Jury. (b) Where a warrant was directed to the constable of Thorold, in the Niagara District, authorizing him to search the plaintiff's house, at the Township of Louth, in the same district, it not appearing that there was more than one person appointed to the office of constable of Thorold-Held, that the direction to the Constable of Thorold, not naming him, to execute the warrant in the Township of Louth, was good; for, although a warrant to a peace officer, by his name of office, gives him no authority out of the precincts of his jurisdiction, yet such authority may be expressly given on the face of the warrant, as in this case. (c) A warrant, though irregular, is a justification to the officer who executes it, because they are not to canvass the legality of the process they execute, or set up their private opinion against that of the Justice as to the goodness of the warrant. (d) The warrant of a Justice is only prima facie not conclusive evidence of its contents; as, for instance, a recital (a) Connors v. Darling, 23 U. C. Q. B. 541. (b) Reg. v. Duvaney, 1 Hannay, 571. (c) Jones v. Ross, 3 U. C. Q. B. 328. (d) Ovens v. Taylor, 19 U. C. C. P. 56, per Hagarty, J.; Painter v. Liverpool Gas Co. 3 A. & E. 433. in the warrant that an information was laid prior to its issue is only prima facie evidence of that fact. (a) Justices of the Peace, acting judicially in a proceeding in which they have power to fine and imprison, are Judges of record, and have power to commit to prison orally, without warrant, for contempt, committed in the face of the Court. (b) Thus, if the Justice be called a "rascal, and a dirty mean dog," "a damned lousy scoundrel," a "confounded dog,” etc., the Justice has a right to imprison as often as the offence is committed. A prisoner was convicted three several times on the same day for using the above opprobrious epithets to a Justice, while in the execution of his office, and detained in prison under three several warrants, all dated the same day, the periods of imprisonment in the two last. commencing from the expiration of the one preceding it, but the first to be computed "from the time of his arrival and delivery (by the bailiff) into your (the gaoler's) custody thenceforward" :-Held, that the Justice had a right to convict and sentence for continuing periods, and to make the period of imprisonment on the second and third adjudications begin at the termination of the first imprisonment; but, as the first period of imprisonment was depending on the will of the officer who was to convey to gaol, it was, therefore, uncertain, and the other periods of imprisonment depending on the same contingency, were likewise uncertain, and the prisoner was, therefore, entitled to his discharge. (c) A Justice of the Peace, while sitting in discharge of his duty examining parties upon a criminal charge, has power to protect himself from insult, and to repress dis (a) Friel v. Ferguson, 15 U. C. C. P. 584. HH |