PART XV. Definitions. 'Territorial division.' 'The court.' 'District,' 'county.' 'Common gaol.' 'Clerk of the peace.' SUMMARY CONVICTIONS. Interpretation. 705. In this Part, unless the context otherwise requires,(a) 'territorial division' means district, county, union of counties, township, city, town, parish or other judicial division or place; (b) 'the court' in the sections of this Part relating to justices stating or signing cases means and includes any superior court of criminal jurisdiction for the province in which the proceedings in respect of which the case is sought to be stated are carried on; (c) 'district' or 'county' includes any territorial or judicial division or place in and for which there is such judge, justice, justice's court, officer or prison as is mentioned in the context; (d) 'common gaol' or 'prison' for the purpose of this Part means any place other than a penitentiary in which persons charged with offences are usually kept and detained in custody; (e) 'clerk of the peace' includes the proper officer of the court having jurisdiction in appeal under this Part, and, in the province of Saskatchewan or Alberta, and in the Northwest Territories, means the clerk of the Supreme Court of the judicial district within which conviction under this Part takes place or an order is made. R.S., c. 50, s. 102; 55-56 V., c. 29, ss. 839 and 900. The summary convictions clauses.]-Unless the context otherwise requires, a reference in any Act to the Summary Convictions Act shall be construed as a reference to Part XV. of the Criminal Code. The Interpretation Act, sec. 29. Proceedings before "a justice."]-Where the expression "a justice" is used in the Code the word "justice" means a justice of the peace, and includes two or more justices, if two or more justices act or have jurisdiction, and also a police magistrate, a stipendiary magistrate and any person having the power or authority of two or more justices of the peace. Code sec. 2 (18). A stipendiary magistrate is none the less a justice of the peace because he receives a stipend, nor is he any the less a justice because the policy of the legislature has been to give him the powers of two justices in order to facilitate the transaction by him of the business which would otherwise fall on the other justices. R. v. McFadden (1885), 6 N.S.R. 426. Disqualification of justices.]—A justice of the peace is not disqualified by the fact that he and the counsel for the prosecution are partners in the business of attorneys provided they have no joint interest in the fees earned by the counsel for the prosecution or in any fees payable to the justice on the trial of the information. Neither is it a ground of disqualification that the justice was appointed and paid by the town council at whose instance the complaint was made and the prosecution carried on, his salary being a fixed sum, not dependent on the amount of fines collected. R. v. Grimmer, in Re Macdonald (1886), 25 N.B.R. 424. Every person having a personal interest in any litigation, or having a direct or indirect motive for desiring a particular decision to be come to. should abstain from putting himself in such a position as that unconsciously to himself a bias adverse to the due administration of justice might take possession of his mind. R. v. Justices of Great Yarmouth (1881), L.R. 8 Q.B.D. 525; R. v. Chapman (1882), 1 Ont. R. 582. A magistrate who is engaged in the same kind of business as a trader prosecuted under a transient traders' license law is thereby disqualified from adjudicating upon the charge. R. v. Leeson (1901), 5 Cân. Cr. Cas. 184 (Ont.). Defendant was convicted of a breach of a by-law in selling land by auction without license; two of the four convicting justices were licensed auctioneers for the county and persisted in sitting after objection taken on account of interest, though the case might have been disposed of by one justice. It was held that they were indirectly interested in the result of the case, in so far as it was to their interest either to limit the number of persons acting as auctioneers in the town, or to confine the business of selling lands by auction to persons holding, as they did, auctioneer's licenses, and the conviction was quashed with costs against the two justices. R. v. Chapman (1882), 1 Önt. R. 582. The magistrate must not unite in his own person the functions of judge and prosecutor. Monson's Case, [1894] 1 Q.B. 750. If a prosecution be brought for the benefit of a small class of privileged persons, of whom the magistrate is one, the conviction will be quashed on the ground of the pecuniary interest of the justice. R. v. Huggins, [1895] 1 Q.B. 563; R. v. Steele, 26 Ont. R. 540. But if the ordinary members of the society or association on whose behalf the prosecution is brought have no control over or responsibility for any prosecution brought by the society, the fact that the magistrate is one of the ordinary members will not suffice to disqualify him. Allinson v. General Council, [1894] 1 Q.B. 750. So where a prosecution was brought at the instance of the Incorporated Law Society, and a conviction obtained for falsely pretending to be a solicitor, but no part of the fine was payable to the society, it was held that the fact of one of the magistrates being a member of the society furnished no reasonable ground for supposing that he was biased, nor did it constitute him a party on whose behalf the prosecution was taken or give him a pecuniary interest therein, although the society was under the liability of having an order for costs made against it. R. v. Burton, [1897] 2 Q.B. 468; R. v. Mayor of Deal, 45 L. T. 439. The fact that a qui tam action is pending against the magistrate at the suit of the father of the accused is not a sufficient ground of bias. parte Thomas Gallagher (1897), 33 C.L.J. 547. Ex The relationship, subsisting because of being married to sisters, between the magistrate and the chief inspector of licenses, who was the informant and prosecutor in the proceedings in which the conviction was made, will not disqualify the magistrate from hearing the case. R. v. Major (1897), 33 C.L.J. 162 (S.C.N.S.). Where one of the magistrates trying several connected charges of assault was married to a first cousin of one of the complainants, and the other complainants were acting as servants of the related complainant in the matter in which the assault arose, all the convictions were set aside on the ground of affinity. Campbell v. McIntosh (1872), 1 P.E.I. Rep. 423. The justice of the peace before whom the information was laid, and who issued the summons was alleged to be interested; but the hearing took place before, and the adjudication and conviction were made by another justice whose qualification was not attacked, while the defendant pleaded to the charge and raised no objection to the validity of the proceedings until the application for a certiorari; it was held that the conviction could not be impugned. (R. v. Gibbon, 6 Q.B.D. 168, distinguished); R. v. Stone (1892), 23 Ont. R. 46. Where the defendant's wife was the widow of the committing magistrate's deceased son, it was held that there was no relationship by affinity between the magistrate and the defendant to disqualify the magistrate from hearing the case. Ex parte William Wallace (1887), 25 N.B.R. 593. A magistrate is not disqualified from trying a case by reason of the fact that his salary is paid out of a municipal fund largely made up of fines imposed for the infraction of the statute under which the charge is laid; nor because of his being a ratepayer of the municipality to which, in case of conviction, the fine would be payable. Ex parte Driscoll, 27 N.B.R. 216; Ex parte Flannagan, 34 N.B.R. 326, 2 Can. Cr. Cas. 513; Ex parte Gorman (1898), 4 Can. Cr. Cas. 305 (N.B.); R. v. Fleming, 27 Ont. R. 122; Ex parte McCoy (1896), 1 Can. Cr. Cas. 410 (N.B.); R. v. Hart (1887), 2 B.C.R. 264. The fact that a convicting justice for an offence against the provisions of the Liquor License Act, 1896, is an inspector under the Act, but not for the district where the offence is alleged to have been committed, is not such an interest as to disqualify him. Ex parte Michaud (1896), 4 Can. Cr. Cas. 569, 34 N.B.R. 123. When the magistrate's position would be a good ground of challenge to a juror for favour, he is disqualified to act. Ex parte Wallace, 27 N.B.R. 174; Ex parte Jones, 27 N.B.R. 552; Ex parte Hannah Gallagher (1898), 4 Can. Cr. Cas. 486 (N.B.). It is sufficient to shew that the magistrate might have been influenced, and it need not appear that he was in fact influenced. R. v. Milledge, 4 Q.B.D. 332; R. v. Gaisford, [1892] 1 Q.B. 383. A magistrate is disqualified from trying an information for an offence punishable on summary conviction where there is a bona fide action pending against him brought by the husband of the accused for alleged malicious conduct as a judicial officer and for assault. Ex parte Hannah Gallagher (1898), 4 Can. Cr. Cas. 486. If the action against the justice is not bona fide but a mere sham to attempt to disqualify him, its pendency will not operate as a disqualification. Ibid.; Ex parte Scribner, 32 N.B.R. 175. The disqualification of a justice arising from an action pending against him ceases when he has recovered judgment, though an execution has issued which is unsatisfied. Ex parte Ryan (1894), 4 Can. Cr. Cas. 485 (N.B.). With the exception of where a magistrate acts upon view of an offence, he should not be a promoter of the prosecution, or be interested personally in the matter he is called on magisterially to investigate. It is contrary to natural justice that the judge should be interested in securing the conviction of the accused, or be influenced by any bias other than that produced by the evidence on the mind of one unpredisposed by any kind of interest to have his judgment so warped as to prevent his giving an impartial decision. If such an interest exists, the magistrate is disqualified from acting judicially, be the interest never so small. The court cannot weigh the interest or estimate its force. R. v. Sproule (1887), 14 Ont. R. 375, 381. The mere fact of a magistrate being a druggist, and in that capacity filling medical prescriptions containing small quantities of liquor, would not constitute a disqualifying interest in a prosecution for unlawfully selling intoxicating liquor without a license. R. v. Richardson (1891), 20 Ont. R. 514. The connection of the magistrate with a society, which supplied funds part of which were used to make the purchase upon which the prosecution of illegal sale of liquor was based, because of his being an honorary member of the society, but not entitled to take any part in its affairs is not a ground of disqualification. R. v. Herrell (1898), 1 Can. Cr. Cas. 510 (Man.). Where a conviction is set aside on the ground of disqualification of the magistrate costs are not generally given against him. R. v. Meyer, 1 Q.B.D. 173; but they may be if he has been guilty of some gross impropriety in the exercise of his summary jurisdiction. R. v. Goodall, L.R. 9 Q.B. 557, per Cockburn, C.J.; R. v. Klemp (1885), 10 Ont. R. 143, 158. Justices of the peace, who belong to an association (a temperance alliance) of which the president is the party prosecuting, and to which association any fine to be imposed upon the accused for the offence against the liquor law with which he is charged would be paid under resolution of the municipal council, are disqualified from trying the charge, and will be prevented by a writ of prohibition from so doing. Daignault v. Emerson (1898), 5 Can. Cr. Cas. 534 (Que.). The fact that between the time when the information was received by such justices and the time of hearing of the charge, the justices had withdrawn from the association does not validate the proceedings. Ibid. A civil action brought by the accused against the magistrate for alleged misconduct as a judicial officer but in which the magistrate had not been served with process at the time the conviction was made, is not a cause of disqualification. R. v. Batson (1906), 12 Can. Cr. Cas. 62. A summary conviction made by two justices of the peace will not be quashed on the ground that one of them was related to the defendant. within the ninth degree of consanguinity, if the justice was not aware of the relationship, and no objection was taken at the hearing. Ex parte McEwan (1906), 12 Can. Cr. Cas. 97. Application of Part. 706. Subject to any special provision otherwise enacted with respect to such offence, act or matter, this Part shall apply to, conviction. (a) every case in which any person commits, or is suspected To all cases of having committed, any offence or act over which the of summary Parliament of Canada has legislative authority, and for which such person is liable, on summary conviction, to imprisonment, fine, penalty or other punishment; To all cases where an order can be made sumarily. Hearing to be by one or more justices. (b) every case in which a complaint is made to any justice in relation to any matter over which the Parliament of Canada has legislative authority, and with respect to which such justice has authority by law to make any order for the payment of money or otherwise. 55-56 V., c. 29, s. 840. Jurisdiction of justices.]-Though the organization of courts of criminal jurisdiction is within the exclusive powers of the provincial legislatures, the Parliament of Canada may impose upon existing courts or judicial officers the duty of administering the criminal law, and its action to that end need not be supplemented by provincial legislation. Re Vancini (No. 2), 8 Can. Cr. Cas. 228. The Dominion Parliament has jurisdiction to confer upon justices of the peace appointed under provincial authority jurisdiction to summarily try criminal offences. R. v. Wipper (1901), 5 Can. Cr. Cas. 17 (N.S.). If the accused is in fact present before the magistrate, and the magistrate has jurisdiction over the person and the offence, he may lawfully proceed with the hearing of the charge, notwithstanding that the warrant on which the accused was arrested was executed by a person not legally qualified for that purpose. Ex parte Giberson (1898), 4 Can. Cr. Cas. 537, 34 N.B.R. 538. As to cases of assault or battery in which a question of title to land arises, see sec. 709; and as to colour of right in certain cases of injury to property see sec. 540. Corporations.]-It has been held by the Supreme Court of New Brunswick that the procedure of the Criminal Code as to summary convictions does not apply to corporations, and that as regards charges of a criminal nature, a corporation is not within the statutory term "person," which by the Interpretation Act, R.S.C. 1906, ch. 1, is declared to include "any corporation to whom the context can apply," etc. Ex parte Woodstock Electric Light Co. (1898), 4 Can. Cr. Cas. 107, 34 N.B.R. 467. But a different conclusion was arrived at by a Divisional Court of the High Court of Justice of Ontario in R. v. Toronto Ry. Co. (1898), 2 Can. Cr. Cas. 471, in which it was held that the procedure of the Code as to summary convictions applies as well to corporations as to natural persons, and that the fact that a portion of the remedy provided for the recovery of the penalty and costs is personal imprisonment does not prevent the application of the summary procedure in other respects to corporations. And in Nova Scotia the principle of the latter case was applied in a prosecution under the Nova Scotia Summary Convictions Act, R.S.N.S., ch. 161. R. v. Dominion Coal Co., 41 N.S.R. 149. Jurisdiction. 707. Every complaint and information shall be heard, tried, determined and adjudged by one justice or two or more justices as directed by the Act or law upon which the complaint or information is framed or by any other Act or law in that behalf. May be by 2. If there is no such direction in any Act or law then the one justice complaint or information may be heard, tried, determined and adjudged by any one justice for the territorial division where unless spe |