PART XIV. PROCEDURE ON APPEARANCE OF ACCUSED BEFORE JUSTICE. Jurisdiction. 668. When any person accused of an indictable offence is Inquiry by before a justice, whether voluntarily or upon summons, or justice. after being apprehended with or without warrant, or while in custody for the same or any other offence, the justice shall proceed to inquire into the matters charged against such person in the manner hereinafter directed. 55-56 V., c. 29, s. 577. Jurisdiction.]—A mandamus will lie to compel a magistrate to proceed with an enquiry in respect of an indictable offence if the magistrate erroneously holds that the offence charged is not indictable, and in consequence refuses to further consider it, but if the magistrate exercises his discretion, though erroneously, in refusing process against the accused after consideration of the charge submitted by the prosecutor a mandamus will not be granted to compel a re-hearing. R. v. Meehan (No. 2), 5 Can. Cr. Cas. 312 (Ont.). A magistrate holding a preliminary enquiry for an indictable offence may not proceed to summarily convict on the evidence given therein for both the accused and the prosecutor, for a lesser offence included in the offence charged, although such lesser offence, if originally charged, would have been within his jurisdiction for trial. And a conviction made by a magistrate after proceeding upon a preliminary enquiry is invalid and will be quashed although neither the accused nor his counsel made objection before the magistrate. Ex parte Duffy, 8 Can. Cr. Cas. 277. The magistrate who holds the preliminary investigation on a charge preferred against an accused person, may commit him on any other one or more charges disclosed by the evidence. The King v. Mooney, 11 Can. Cr. Cas. 333. The refusal of a magistrate holding a preliminary enquiry to order particulars in a general charge of "conspiracy to defraud the public" is not a ground for prohibition. And an information laid in general terms charging that the accused did in specified years "conspire with others, whose names are unknown, by deceit, falsehood and other fraudulent means to defraud the public," sufficiently states an offence under Code sec. 444 to give jurisdiction to a magistrate to hold a preliminary enquiry. The King v. Phillips, 11 Can. Cr. Cas. 89, 11 O.L.R. 478. A person discharged by a justice on a preliminary enquiry for an indictable offence may be summoned again before the same or another justice on a fresh information for the same offence. The King v. Hannay, 11 Can. Cr. Cas. 23. It is not competent for magistrates where an information charges an offence under the Code, which they have no jurisdiction to try summarily, to convert the charge into one against a municipal by-law, which they have Irregularity or variance not to affect validity. Adjourn. ment in case of. jurisdiction to try summarily, and to so try it on the original information. R. v. Dungey (1901), 5 Can. Cr. Cas. 38 (Ont.). Other justices.]-When an accused person is summoned to appear before a justice of the peace having jurisdiction to conduct the proceedings without associate justices, other justices of the peace are not entitled to interfere in the preliminary enquiry, or to be associated with the summoning justice, except at the latter's request. R. v. McRae (1897), 2 Can. Cr. Cas. 49. Prisoner's counsel.]-Until the prisoner is brought before the magis trate, he has no absolute right to the assistance of counsel; but it is usual for the Crown to accede the privilege except under very peculiar circumstances. Particulars.]-It is essential that whatever words may be used in the information they should be sufficient to give the accused notice of the offence with which he is charged, and to identify the transaction referred to. The absence or the insufficiency of particulars does not vitiate an indictment nor an information; but if it should be made to appear that there is a reasonable necessity for more specific information, the court or magistrate may, on the application of the accused person, order that further particulars be given, but such an order is altogether within the judicial discretion of the judge or magistrate. R. v. France (1898), 1 Can. Cr. Cas. 321, 329 (Que.). And see R. v. Phillips, supra. 669. No irregularity or defect in the substance or form of the summons or warrant, and no variance between the charge contained in the summons or warrant and the charge contained in the information, or between either and the evidence adduced on the part of the prosecution at the inquiry, shall affect the validity of any proceeding at or subsequent to the hearing. 55-56 V., c. 29, s. 578. Process prior to hearing.]—The omission to state in a warrant of arrest that the information was taken under oath is merely an irregularity and would be cured by this section. Kingston v. Wallace (1886), 25 N.B.R. 573. Where a warrant charges no offence known to the law, neither it nor a Where an informant fairly stated the facts of the case to the magistrate and the latter issued a search warrant upon an information which did not disclose a criminal offence, the informant is not liable in damages for the erroneous view of the magistrate that he had jurisdiction to issue a search warrant thereon. Pring v. Wyatt (1903), 7 Can. Cr. Cas. 60. But if the informant upon the preliminary enquiry assents to an amendment of the information to charge the offence of theft and proceeds with the charge upon the amended information, he will be liable in an action for malicious prosecution brought after the dismissal of the charge if the jury find that the informant did not believe at the time when said amendment was made, that the accused had wrongfully taken the chattel without any belief that he had a right to take it. Ibid. 670. If it appears to the justice that the person charged has been deceived or misled by any such variance in any summons or warrant, he may adjourn the hearing of the case to some future day, and in the meantime may remand such person, or admit him to bail as hereinafter mentioned. 55-56 V., c. 29, s. 579. Procuring attendance of Witnesses. 671. If it appears to the justice that any person being or Summons residing within the province is likely to give material evidence for witness. either for the prosecution or for the accused on such inquiry he may issue a summons under his hand, requiring such person to appear before him at a time and place mentioned therein to give evidence respecting the charge, and to bring with him any documents in his possession or under his control relating thereto. 2. Such summons may be in form 11, or to the like effect. Form. 55-56 V., c. 29, s. 580. The summons to a witness can be issued only by the justice who has taken the information or who is holding the preliminary enquiry. Bryne v. Arnold, 24 N.B.R. 161. for witness. 672. Every such summons shall be served by a constable or Service of other peace officer upon the person to whom it is directed either summons personally, or, if such person cannot conveniently be met with, by leaving it for him at his last or most usual place of abode with some inmate thereof apparently not under sixteen years of age. 55-56 V., c. 29, s. 581. after 673. If any one to whom such last-mentioned summons is Warrant for directed does not appear at the time and place appointed there- witness by, and no just excuse is offered for such non-appearance, then summons. after proof upon oath that such summons has been served as aforesaid, or that the person to whom the summons is directed is keeping out of the way to avoid service, the justice before whom such person ought to have appeared, if satisfied by proof on oath that such person is likely to give material evidence, may issue a warrant under his hand to bring such person at a time and place to be therein mentioned before him or any other justice in order to testify as aforesaid. Endorse 2. The warrant may be in form 12, or to the like effect. Form. 3. Such warrant may be executed anywhere within the terri- Execution. torial jurisdiction of the justice by whom it is issued, or, if ment. necessary, endorsed as provided in section six hundred and sixty-two and executed anywhere in the province out of such jurisdiction. 55-56 V., c. 29, s. 582. Procedure against defaulting witness. Penalty for contempt. Form of conviction. Warrant for witness in first instance. Form, etc. Witness beyond Some reasonable effort should be made to serve the witness personally; and before any warrant to arrest a witness for non-attendance is issued, evidence should be given that the summons has, in all probability, come to the witness's knowledge. Gordon v. Denison, 22 Ont. App. 326. 674. If a person summoned as a witness under the provisions of this Part is brought before a justice on a warrant issued in consequence of refusal to obey the summons, such person may be detained on such warrant before the justice who issued the summons, or before any other justice in and for the same territorial division who shall then be there, or in the common gaol, or any other place of confinement, or in the custody of the person having him in charge, with a view to secure his presence as a witness on the day fixed for the trial, or, in the discretion of the justice, released on recognizance, with or without sureties, conditioned for his appearance to give evidence as therein mentioned, and to answer as for contempt for his default in not attending upon the said summons. 2. The justice may, in a summary manner, examine into and dispose of the charge of contempt against such person, who, if found guilty, shall be liable to a fine not exceeding twenty dollars, or to imprisonment in the common gaol, without hard labour, for a term not exceeding one month, or to both such fine and imprisonment, and may also be ordered to pay the costs incident to the service and execution of the said summons and warrant and of his detention in custody. 3. The conviction under this section may be in form 13. 55-56 V., c. 29, s. 582. This provision for arresting a defaulting witness does not apply to permit the arrest of a prosecutor in case of a minor offence which he does not wish to proceed with. Cross v. Wilcox, 39 U.C.R. 187. 675. If the justice is satisfied by evidence on oath, that any person within the province, likely to give material evidence either for the prosecution or for the accused, will not attend to give evidence without being compelled so to do, then instead of issuing a summons, he may issue a warrant in the first instance. 2. Such warrant may be in form 14, or to the like effect, and may be executed anywhere within the jurisdiction of such justice, or, if necessary, endorsed as provided in section six hundred and sixty-two and executed anywhere in the province out of such jurisdiction. 55-56 V., c. 29, s. 583. 676. If there is reason to believe that any person residing jurisdiction, anywhere in Canada out of the province who is not within the province, is likely to give material evidence either for the prosecution or for the accused, any judge of a superior court or a county court, on application therefor by the informant Subpoena. or complainant, or the Attorney General, or by the accused person or his solicitor or some person authorized by the accused, may cause a writ of subpoena to be issued under the seal of the court of which he is a judge, requiring such person to appear before the justice before whom the inquiry is being held or is intended to be held at a time and place mentioned therein to give evidence respecting the charge and to bring with him any documents in his possession or under his control relating thereto. 2. Such subpœna shall be served personally upon the person Service and to whom it is directed, and an affidavit of such service by a proof. person effecting the same purporting to be made before a justice, shall be sufficient proof thereof. 55-56 V., c. 29, s. 584. Supana to witness in another province.]—Such particulars as to the nature of the evidence expected from the witness should be set forth in the affidavit or deposition upon which the application is made as will satisfy the judge applied to that the evidence of the witness is material. Under the provisions of this section and of sec. 711, it is competent for a judge to make an order for the issue of a subpoena to witnesses in another province to compel their attendance upon an appeal from justices under Code secs. 749 and 752, respecting a charge brought under Dominion law. R. v. Gillespie, 16 P.R. (Ont.) 155. witness. 677. If the person served with a subpoena as provided by Warrant for the last preceding section, does not appear at the time and place defaulting specified therein, and no just excuse is offered for his nonappearance, the justice holding the inquiry, after proof upon oath that the subpœna has been served, may issue a warrant under his hand directed to any constable or peace officer in the district, county or place where such person is, or to all constables or peace officers in such district, county or place, directing him, them or any of them to arrest such person and bring him before the said justice or any other justice at a time and place mentioned in such warrant in order to testify as aforesaid. Endorse 2. The warrant may be in form 15, or to the like effect; and Form. if necessary, may be endorsed in the manner provided by section ment. six hundred and sixty-two and executed in a district, county or place other than the one therein mentioned. 55-56 V., c. 29, s. 584. A witness subpoenaed in a criminal case where the charge is for an indictable offence must attend without prepayment of expenses or witness fees; R. v. James, 1 C. & P. 322; though an allowance is usually made |