No costs against justice. Amendment of case. Judge at chambers has power of court. Enforce ment of conviction by justice. By process of court. No certiorari required. 2. No justice who states and delivers a case shall be liable to any costs in respect or by reason of such appeal against his determination. 55-56 V., c. 29, s. 900. Question of law.]-Only questions of law which have first been raised before the magistrate and which are specified in the formal "case" he has stated to the appellate court, are to be determined under this section upon a stated case. R. v. Nugent (1904), 9 Can. Cr. Cas. 1. Where there was ample evidence to warrant the conviction made by a justice of the peace of keeping liquor for sale and no evidence was adduced by the defence in rebuttal of the charge, the court will not on a stated case hold the conviction bad because of the admission of irrelevant testimony. R. v. Nugent (1904), 9 Can. Cr. Cas. 1. No action or proceeding shall be commenced or had against a justice for enforcing a conviction, order or determination affirmed, amended or made by the court under sec. 765. Code sec. 1151. 766. The court for the opinion of which a case is stated shall have power, if it thinks fit, to cause the case to be sent back for amendment; and thereupon the same shall be amended accordingly, and judgment shall be delivered after it has been amended. 2. The authority and jurisdiction of the court for the opinion of which a case is stated may, subject to any rules and orders of court in relation thereto, be exercised by a judge of such court sitting in chambers, and as well in vacation as in term time. 55-56 V., c. 29, s. 900. On an appeal by way of stated case from a summary conviction, it is discretionary with the court to hear an objection not taken before the justice. Simpson v. Lock, 7 Can. Cr. Cas. 294. 767. After the decision of the court in relation to any case stated for their opinion, the justice in relation to whose determination the case has been stated, or any other justice exercising the same jurisdiction, shall have the same authority to enforce any conviction, order or determination which has been affirmed, amended or made by such court as the justice who originally decided the case would have had to enforce his determination if a case had not been stated. 2. If the court deems it necessary or expedient any order of the court may be enforced by its own process. 55-56 V., c. 29, s. 900. If the justice refuses to act in accordance with the judgment of the court upon a case stated, he may be compelled by mandamus to do so. R. v. Haden Corser, 8 Times L.R. 563. 768. No writ of certiorari or other writ shall be required for the removal of any conviction, order or other determination in relation to which a case is stated as aforesaid for obtaining the judgment or determination of a superior court on such case. 55-56 V., c. 29, s. 900. of case 769. Every person for whom a case is stated as aforesaid Statement in respect of any determination of a justice from which he is precludes entitled to an appeal under section seven hundred and forty- appeal. nine, shall be taken to have abandoned his said right of appeal finally and conclusively and to all intents and purposes. be stated 2. Where, by any special Act, it is provided that there shall No case to be no appeal from any conviction or order, no proceedings shall when no be taken to have a case stated or signed as aforesaid in any case appeal. to which such provision as to appeal in such special Act applies. 55-56 V., c. 29, s. 900. No other appeal allowed where case stated.]-Under a provincial enactment, similar to Code sec. 769 (1), providing that a person appealing by way of stated case to a superior court shall be taken to have abandoned his right of appeal to a county court, it was held that the appellant by obtaining a case to be stated elects that mode of appeal and cannot revert to an appeal to the county court on the stated case being dismissed for non-compliance with statutory conditions. Cooksley v. Toomaten Oota (1901), 5 Can. Cr. Cas. 26 (B.C.). In the case of R. v. Caswell (1873), 33 U.C.Q.B. 303, a notice of appeal to the sessions was given, but was irregular because given for the then next sessions instead of the second sessions thereafter, the conviction having been made within twelve days (now fourteen days, sec. 750 (a)) of the next sittings. The statute 33 Vict., ch. 27, sec. 1 (now Code sec. 1122), prohibited the allowance of a certiorari if the defendant had appealed from such conviction or order to any court to which an appeal from such evidence or order was authorized by law. The appeal was not heard, the notice of appeal being held to be inoperative. It was held that there had. in effect, been no appeal and that the right to certiorari had not been taken away. In Cooksley's Case, supra, the granting of the application for a case stated took the place of a notice of appeal; and, in addition, the recognizance was entered into. But if the application for a stated case had been refused, quære whether the application alone would constitute an "appeal" under the provisions of secs. 761-769. Section 764 seems to indicate that the recognizance is operative only upon a case being stated. Where the grounds taken on a motion in certiorari proceedings to quash a conviction are the same as those taken and disposed of by a single judge on a stated case, the matter is res judicata. R. v. Monaghan (1897), 2 Can. Cr. Cas. 488 (N.W.T.). Where an appeal has been taken to a county court under Cr. Code sec. 749 from a summary conviction and the county court has affirmed the conviction, it is not open to the accused to afterwards have the convicting magistrate refer a "stated case" to a superior court. The decision of the county court being res adjudicata between the parties is a bar to the application for a "stated case." The King v. Townshend (No. 2), 6 Can. Cr. Cas. 519, 35 N.S.R. 401; Hastings v. St. James, L.R. 1 Q.B. 43. Fees. Fees. 770. The fees mentioned in the following tariff and no others shall be and constitute the fees to be taken on proceedings before justices under this Part: Fees to be taken by Justices of the Peace or their Clerks. 1. Information or complaint and warrant or summons. $0 50 2. Warrant where summons issued in first instance.. 0 10 3. Each necessary copy of summons or warrant.. 0 10 .. 4. Each summons or warrant to or for a witness or 0 10 5. Information for warrant for witness and warrant. 0 50 1 00 9. If case lasts over two hours.. 10. Where one justice alone cannot lawfully hear and determine the case the same fee for hearing and determining to be allowed to the associate 11. For each warrant of distress or commitment.. .. 0 25 on certiorari.. .. 100 But in all cases which admit of a summary pro- 0 50 13. For copy of any other paper connected with any 005 14. For every bill of costs when demanded to be made 0 10 3. Mileage to serve summons or warrant, per mile (one way) necessarily travelled.. 0 10 4. Same mileage when service cannot be affected, but only upon proof of due diligence. 5. Mileage taking prisoner to gaol, exclusive of disbursements necessarily expended in his convey ance.... 6. Attending justices on trial, for each day necessarily employed in one or more cases, when engaged less than four hours.. 7. Attending justices on trial, for each day necessarily employed in one or more cases, when engaged more than four hours.. 8. Mileage travelled to attend trial (when public conveyance can be taken, only reasonable disbursements to be allowed) one way per mile.. .. 0 10 100 1 50 0 10 100 1 00 .. 9. Serving warrant of distress and returning same.. 12. Appraisements, whether by one appraiser or more- 0 10 Witnesses' Fees. 1. Each day attending trial.. .. $0 75 2. Mileage travelled to attend trial (one way) per mile. 0 10 55-56 V., c. 29, s. 871; 57-58 V., c. 57, s. 1. Excessive costs.]-A justice's order dismissing an information under "The Summary Convictions Act," ordered the informant to pay as costs a sum which included items for "rent of hall," "counsel fee," "compensation for wages," and "railway fare." Held, that none of these items could legally be charged as costs. R. v. Laird (1889), 1 Terr. L.R. 179. In that case the court held that it had no power to amend the order by deducting the illegal items; though it could amend by striking out in toto all that part of the order relating to costs. R. v. Laird (1889), 1 Terr. L.R. 179; secs. 886 and 889 seem not to apply to "orders of dismissal," but to be limited to orders or convictions against the accused. The allowance by the magistrate on a summary conviction, of excessive costs in respect of mileage to the constable for serving subpoenas upon witnesses, is not a ground for quashing the conviction. Ex parte Rayworth (1896), 2 Can. Cr. Cas. 230 (N.B.). If the magistrate charges excessive costs, although he does so innocently, he is liable in a civil action to be made to refund the excess. Ex parte Howard (1893), 32 N.B.R. 237. This tariff applies only to proceedings under Part XV. of the Code. Tuttle v. McDonald, 36 Can. Law Jour. 642. |