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Too much prominence cannot be given to this statement, as Magistrates might infer from the remarks of the author in his preface, where he says: "In annotating the sections of the different statutes now in force, the writer has striven to collect from the English works everything that seemed likely to be of use," . . . that the work was more comprehensive than it is. Being thus limited in so far as the jurisdiction of Magistrates in summary convictions and orders under Dominion Acts is concerned, it becomes necessary to show the principal points of difference in the law, as affecting the exercise of their jurisdiction under acts of Local Legislatures. The law as respects subjects falling within the jurisdiction of the Legislatures of Quebec and Ontario is still governed by chap. 103, Consolidated Statutes of Canada, and it is important to know that it differs materially from the Dominion Act annotated by Mr. Kerr. For instance, by the latter Act it is enacted that, "In all cases of complaint upon which a Justice or Justices of the Peace may make an order for the payment of money or otherwise, it shall not be necessary that such a complaint be in writing unless it be required to be so by some particular Act or Law, upon which such complaint is framed ;" whereas, the very reverse is enacted by sec. 20, chap. 103, C. S. C, which requires that the complaint "shall be in writing and on oath," unless otherwise provided by the particular Act. In the same way, section 2-4 of the Dominion Act declares that the complaint or information may be made or laid without any oath or affirmation; whereas sec. 24 of chap. 103 expressly requires that they should be made or laid on oath or affirmation.
Then, again, there exists a marked distinction between these two Acts, in relation to the all-important matter of appeals. Sections G5, C6, 67, 08, and 09 of the Dominion Act relating to Appeals, amended by chap. 27 of the Dominion Acts of 1870, are entirely new provisions not to be found in chap. 103, C. S. C. If the Magistrate is acting under a Dominion Act, the provisions of the Amending Act relating to appeals, will apply, which allows an appeal, not "in every case" generally, as might be inferred from the author's remarks at page 387, but "to any person who thinks himself aggrieved by any such conviction or order," thereby limiting the right of appeal to the defendant; the unsuccessful prosecutor having no such right.
But let us suppose a Magistrate in the Province of Quebec or Ontario is exercising his jurisdiction under an Act of the Local Parliament; how stands the law relating to appeals? Chapter 103, C. S. C, now regulating in both Provinces the exercise of the jurisdiction of Justices in summary convictions and orders under local Acts, contains no provision conferring a right of appeal; but simply contains some enactments as to enforcing convictions or orders appealed from, decided in favour of the Respondents. In Ontario several statutory provisions existed on this subject. By the 2nd Wm. IV., ch. 6, sec. 18, an appeal was conferred in the cases mentioned in the Act determinable by a jury; and the 13 & 14 Vict., ch. 54, conferred a general power of appeal in every case wherein a decision had been rendered by a Justice of the Peace, Mayor, or Police Magistrate in any matter "not being a crime," and such appeal at the request of either party might be determined by a jury to be empanelled for that purpose. This is now the law of Ontario, in virtue of ehap. 114, Consolidated Statutes of Upper Canada.
The law of Ontario, applicable to local Acts, differs materially from the laws of England, and from the laws of Quebec in this, that it confers a right of appeal generally in all cases, even to the unsuccessful prosecutor. Archbold, Quarter Sessions, page 85, it is stated: "There is no general statute giving an appeal in all cases against the orders or convictions of Justices out of sessions; but the power of appealing to the Sessions is given by different statutes in particnlar instances. Saunders on Convictions, pp. 54 and 55, says: "The power of appealing to the sessions is not of general, but of particular right, and exists only in those cases in which it is specially given." This is the law of England.
In the Province of Quebec the same rule prevails. There is no law giving a right of appeal in all cases. It can only exist under particular Acts. The most comprehensive provision is sec. 117, chap. 99, C. S. C., .which enacts, "In case any person thinks himself aggrieved by any summary conviction or decision under any of the foregoing criminal Acts," then in case such person complies with its requirements as to notice and entering into a recognizance, he may appeal to the Sessions. The provisions of these criminal Acts so referred to are the following:
1. Chap. 90, sec. 26, 27, 28, 31 and 32. Eelating to the offences of
importing or manufacturing coin in contravention of this Act, and the uttering of coin other than that mentioned in the Act.
2. Chap. 91, sec. 37. Common assault and battery.
3. Chap. 92, sec. 18, disturbing persons assembled for religious wor
ship; sec. 31, offering shipwreck goods for sale which have been unlawfully taken; sec. 33, dog stealing; sec. 36, 37, 38, 39 and 40, stealing tress, fences, plants in gardens and vegetables, &e.
4. Chap. 93, sec. 25, 2G, 27 and 28. Malicious injuries to property.
5. Chap. 95. Lotteries, the making and publishing thereof, and the
buying and receiving lottery tickets.
6. Chap. 96. Cruelty to animals.—Constables or peace officers re
fusing or neglecting to serve any summons or warrant issued under the provisions of that act.
In the above cases an appeal is given; and this shews how different is the law in both Provinces, with reference to appeals from conviction under local Acts. The above observations are made in the interest of Magistrates generally, and to remind thein that Mr. Kerr's work does not profess to deal with the law as applicable to their summary jurisdiction in general, but simply in so far as that jurisdiction in relation to summary convictions and orders under Dominion Acts, is concerned. No doubt, the author intended to simplify his work, by annotating Acts of the Dominion of general application.
Before concluding this review of so important a work, we consider it to be our duty, and one we wish to exercise impartially, to take exception to Mr. Kerr's annotations on the 5th section of the 32 & 33 Vict., ch. 31, at pages 154 and 155. The section adverted to. is as follows:
"No objection shall be allowed to any information, complaint, or summons, for any alleged defect therein, in substance or in form, or for any variance between such information, complaint or summons, and the evidence adduced on the part of the informant or complainant, at the hearing of such information or complaint; but if any such variance appears to the Justice or Justices present and acting at such hearing to be such, that the person summoned and appearing, has been thereby deceived or misled, such Justice or Justices, may upon such terms as he or they may think fit, adjourn the hearing of the case to a future day."
The objections we have to make to the author's notes on this section are two in number, and have reference to the following annotations. The author first remarks upon the comprehensive nature of this clause, and adds: "In other words, however defective in substance or in form an information, complaint, or summons may be, still that to the two first the defendant must plead to the merits, and to the last urge no objection." We give in italics the objectionable portion, as implying that no plea other than one to the merits, can be urged by a defendant, however defective in substance or in form the information or complaint may be. The question arises, is this the law? Observe, that the clause does not state that no objection shall be made as to substance or to form, but simply that no objection shall be allowed; whilst the 67 sect, of the same Act enacts: "No judgment shall be given in favour of the appellant if the appeal is based on an objection to any information, complaint, or summons, or to any warrant to apprehend a defendant, issued upon any such information, complaint, or summons, for any alleged defect therein in substance or in form, or for any variance between such information, complaint, summons or warrant, and the evidence adduced in support thereof at the hearing of such information or complaint, unless it shall be proved before the Court hearing the appeal that such objection- was made before the Justice or Justices of the Peace before whom the case teas tried, and by whom such correction, judgment, or decision was given," &c.
This latter clause establishes the converse of the rule laid down by the author, that a defendant is precluded from urging any objections in substance or as to form, against the information or complaint, by declaring that no such objections shall avail in appeal, unless it appears that they were made before the Justice upon the hearing of the case. At first sight, the practitioner might imagine that there is a contradiction between thtse two clauses. But mature reflection will lead to the conviction that they are to be reconciled, by due consideration of the powers vested in Justices exercising original jurisdiction, who are prohibited from allowing such objections to prevail, and the Court exercising appellate jurisdiction, which under section 67 of that Act, is vested with an important discretionary power of giving effect to such objections.
The remarks of the author may be consistent with the observations of English authors on the clause of the Imperial Act, from which section 5 is copied; but where we differ from the author is, that he has apparently overlooked the fact, that he will not find in the Imperial Acts any clause similar to section 67. It is essentially Canadian legislation, and a reproduction of our Provincial Act, 18 Vict. ch. 97, sec. 12 subsequently made law in Lower Canada, by chap. 98 of the Consolidated Statutes of Lower Canada.
Our next objection to the author's annotation of sec. 5, is to be found at page 155, where he says: "But now a days it seems to be admitted that the powers of [amendment do not extend to the substitution of one offence for another, or to the dealing with a case under another statute than the one upon which the information was laid."
The inference that might be drawn by Magistrates is, that they possess the power of amending the information, provided one offence be not substituted for another. The authorities quoted by the author do not support any such doctrine, and we must do the author the justice of saying that he does not distinctly affirm that principle. We deem it our duty, however, to remind Magistrates that they must not infer from the remarks of the author, that they possess any such power.
Justices of the Peace possess no such power unless specially conferred upon them by some particular Act. One instance might be mentioned where that power is given. In chap. 6, C. S. L. C. sec. 41, we find that with reference to prosecutions under that Act, the power of amendment before plea to the merits, is specially given. But in no other case, nor by any general law, does such a power exist. No clearer proof is needed of the correctness of our opinion, than the fact that the Dominion Act, by section 68, vests the power of amendment, not in Justices of the Peace but in the Court of appellate jurisdiction, by enacting with reference to convictions and orders that "the Court shall amend the same if necessary, and any conviction or order so affirmed, or affirmed and amended, shall be enforced in the same manner as convictions or orders affirmed in appeal."
This legislation is not new. In England a similar power was vested by 12 & 13 Vict., ch. 45, sec. 7, in the Court of Quarter Sessions appealed to, and in the Court before which the conviction or order might be removed by certiorari. Many defects in informations have been, in England, held to be cured by the defendant appearing and not objecting. But as to the power of Magistrates to allow amendments, we assert that under their commission they possess no such power; that no general law confers such power, and no amendment can be made without the consent of the defendant. In 2 Chitty's General Practice, p. 204, we read: "If the original information was defective, and the defendant upon