2ND EDIT. Sec. 553. tody any person whom he finds lying or loitering in any highway, yard or other place during the night, and whom he has good cause to suspect of having committed or being about to commit, any indictable offence, and may detain such person until he can be brought before a justice to be dealt with according to law. 2. No person who has been so apprehended shall be detained after noon of the following day, without being brought before a justice. (43) Magisterial jurisdiction over offences com- Sec. 554. Sec. 653. Cases in which justice may issue summons or warrant to compel an accused's attendance before him for preliminary enquiry. Sec. 555. Sec. 556. Sec. 557. Sec. 557a. Unchanged. Offences in unorganized tracks of Ontario. Offences in Gaspé. Powers of clerk of the peace in Montreal. Sec. 558. Sec. 654. Information or Complaint. Any one who, upon reasonable or probable grounds, believes that any person has committed an indictable offence under this Act may make a complaint or lay an information in writing and under oath before any magistrate or justice having jurisdiction to issue a warrant (43) These seven new sections (646-652) are taken from the old sec. 552, without any material alterations. (44) And made (except as to a large portion of par. 3 thereof) into sec. 585, ante. (45) And made into sec. 588, ante. (46) And made into secs. 665 and 666, post. (47) And made into sec. 605, ante. 2ND EDIT. REVISED STATUTES 1906 REMARKS or summons against such accused person in respect of such offence. 2. Such complaint or information may be in form 3, or to the like effect. Slightly altered. Sec. 559. Sec. 655. Issuing summons or warrant after hearing and considering information or complaint. Upon receiving any such complaint or information the justice shall hear and consider the allegations of the complainant, and if of opinion that a case for so doing is made out he shall issue a summons or warrant, as the case may be, in manner hereinafter provided. 2. Such justice shall not refuse to issue such summons or warrant, only because the alleged offence is one for which an offender may be arrested without warrant. Slightly altered. A sworn information merely stating that the complainant has just cause to suspect and believe and does suspect and believe that the defendant has committed the offence charged will not alone authorize a justice to issue a warrant to arrest, in the first instance. It is the duty of the justice to enquire into the facts on which the informant's belief is founded, and exercise his own judgment thereon. When the complaint is laid upon information and belief, and the causes of suspicion are not disclosed therein, the justice should examine the complainant and his witnesses ex parte, under oath, touching the grounds of suspicion; and the justice should grant a warrant of arrest only in case he himself entertains the like suspicion as a result of such investigation. (48) An information and a warrant of arrest thereunder charging the accused as an accessory to the violation of a statute named, without specifying the fact as to which he is alleged to be an accessory, has, on habeas corpus proceedings taken for the prisoner's discharge while in custody under a verbal remand upon a prelimi nary enquiry, been held void for uncertainty, such a warrant charging no offence and neither it nor the remand thereon being validated by section 669, which provides that no irregularity or defect in the substance or form of the warrant shall affect the validity of any proceeding at or subsequent to the preliminary enquiry before the justice. (49) (48) Er parte Coffon, 11 Can. Cr. Cas., 48; 37 N. B. R., 122; Ex p. Boyce, 24 N. B. R., 347. (49) R. v. Holley, 4 Can. Cr. Cas., 510. 2ND EDIT. REVISED STATUTES 1906 REMARKS A justice of the peace who issues a warrant of arrest without enquiring into the grounds which the complainant had to suspect the accused, becomes liable towards the latter, under the laws of the province of Quebec, when the complainant was not justified by any serious reasonable or probable ground. (50) Where the accused found committing a criminal offence is arrested without warrant by a peace officer, and on being brought before a police magistrate a written charge not under oath is read over to him, and he thereupon consents to be tried summarily, the police magistrate has jurisdiction to try the case although no information has been laid under oath. (51) MANDAMUS If, when a charge is laid before a justice, there be no reasonable ground for doubting his jurisdiction or the propriety of exercising it, the justice ought to receive the information or complaint and issue the summons or warrant and if he should refuse, he may be compelled, by mandamus, or, (by virtue of provincial statutes, in some of the provinces) by a rule, in the nature of a mandamus, to do so, by a Superior Court, which is invested with the prerogative right to compel inferior tribunals, such as justices of the peace and magistrates, to exercise the jurisdiction which they possess, and to perform any specific act which it is their legal duty to perform. (52) A mandamus has been issued to justices ordering them to receive an information and complaint. (53) It has also been issued ordering justices to hear a complaint, when they have declined jurisdiction, and to hear and determine a case within their jurisdiction when they have improperly refused or neglected to do so; (54) and it has been held that the court has a discretion as to granting a mandamus to justices to issue a warrant of distress or commitment against a person summarily convicted by them. (55) In compelling the performance of a public duty by an inferior officer or tribunal, the court will carefully consider whether the duty be of a judicial or of a merely ministerial character. If the act to be performed be of a purely ministerial kind, the court will, (50) Murfina v. Sauvé et al., 6 Can. Cr. Cas., 275. (51) R. v. McLean, 5 Can. Cr. Cas., 67. (52) R. v. Bexley. [1898], A. C., 210. (53) R. v. Newton, 1 Str., 413. (54) R. v. Brown, 26 L. J. M. C., 183; R. v. Kent, J. J., 14 East, 317, 395; R. v. Drake, 6 M. & S., 116; R. v. Rawlinson, 6 B. & C.. 23. (55) Er p. Robert Thomas, 16 L. J. M. C., 57; R. v. Hants, J. J.. 1 B. & Ad., 654. 2ND EDIT. REVISED STATUTES 1906 REMARKS by mandamus, compel the specific act to be done, as a matter of course, and in such manner as the court deems lawful. (56) But, if the duty be of a judicial character, a mandamus will be granted only where the judicial officer refuses to perform the duty in any way whatever,—not where he does it in one way rather than in another way. In other words, the court will only insist upon the person who is the judge acting as judge; but it will not dictate to him what his judgment should be. (57) Before making application for a mandamus or for a rule in the nature of a mandamus, calling upon a justice or a magistrate or other inferior tribunal to hear and judicially determine a matter, care should be taken to distinguish between those cases in which the judicial officer refuses to enter upon the enquiry, through, for instance, some mistaken view, on his part, of the law upon some preliminary point, and the cases in which, after having entered upon the enquiry, the judicial officer has actually arrived at a decision upon the merits, however erroneous that decision may be. (58) In the former case, jurisdiction is said to be declined, and the court will compel the exercise of jurisdiction; but, in the latter case, the court will not interfere. (59). Although a justice, when he has reasonable ground for doubting his jurisdiction, will not be compelled to do an act which might subject him to an action; (60) still, if justices reject an application on the erroneous ground that they have no power to grant it, a Superior Court will interfere to set the jurisdiction of the justices in motion, by directing them to hear and determine upon the application. (61) In other words, where persons exercising an inferior jurisdiction refuse, on a mistaken view of the law, to hear a case, they are held to erroneously decline to exercise their jurisdiction, and in that case they will be compelled to hear and decide it. (62) The fact that an inferior tribunal abstains from entering upon (56) R. v. Payn, 6 A. & E., 392. (57) See Remarks of Lord Hardwicke, in R. v. Bishop of Litchfield. 7 Mod. 318, of Lord Ellenborough, in R. v. Archbishop of Canterbury, 15 East, 139, and of Littledale, J., in R. v. Middlesex, 9 A. & E., 546. See R. v. London, J. J.. [1895], 1 Q. B., 616. (58) R. v. Dayman, 26 L. J., M. C., 128. (59) R. v. Breckenridge, 48 J. P., 293. (60) R. v. Broderip, 7 D. & R., 861; R. v. Bucks., 1 B. & C., 485; Paley, 7 Ed.. 244. (61) Per Lord Ellenborough, in R. v. Kent, J. J., 14 East, 307. (62) Per Blackburn, J., in R. v. Monmouth, L. R., 5 Q. B., 256; R. v. Durham, J. J.. 19 L. T., 596; Fournier v. De Montigny, Q. J. R., 10 S. C., 2ND EDIT. REVISED STATUTES 1906 REMARKS the merits of a case, in consequence of arriving at a wrong decision upon a preliminary point of law, is regarded as a refusal to hear; and a mandamus to hear and determine will be granted. (63) A mandamus will be granted to a justice who, by misconstruing a statute, decides improperly that he has no jurisdiction, (64) or, if he refuses to act, from a mistaken view of his jurisdiction, amounting to a declining of it. (65) Thus, where, on an application being made, to a magistrate, to swear and proceed upon an information and complaint, the magistrate refused to do so, erroneously holding,-upon a misconstruction of certain statutes, that the offence charged was not indictable, and that he had no jurisdiction to hold a preliminary enquiry in respect thereof, nor even to try it summarily, it was held that a rule in the nature of a mandamus lay to compel him to proceed. (66) The offence sought to be charged against the defendant in that case was an offence against the provisions of the Ontario Municipal Act, (which fails to impose the punishment therefor), and it was held that the case came under section 138 (now sec. 164) of the Criminal Code, which makes it an indictable offence to disobey any Act of Parliament of Canada or of any Legislature in Canada, by wilfully doing any act which it forbids, and which imposes a punishment of one year's imprisonment, unless some other mode of punishment is expressly provided by law. Where a magistrate hears and considers an application and bona fide exercises his discretion in refusing to do an act relating to the duties of his office, such as deciding to refuse to issue a summons for perjury upon an information setting forth facts on which in his judgment no jury would convict, the court cannot, under these circumstances, grant a mandamus to interfere with his discretion. (67) Where, in the exercise of a discretionary power to proceed or to refuse to proceed, a magistrate refuses to proceed, the court will not order him to do so; but, of course, in such a case, he must have actually and really exercised his discretion or judgment in the matter, and, even if by the statute he is directed to proceed, if he think fit, he must not refuse to proceed from mere caprice, or - (63) Per Coleridge, J., in R. v. Richards, 20 L. J. Q. B., 352. (64) R. v. Cloete, 64 L. T., 90; R. v. Beard, 12 East, 673. (65) R. v. Mead, 77 L. T.. 462; [1898], 1 Q. B., 110; Ex p. Walling ford, 9 Dowl., 987. (66) R. v. Meehan, (No. 2), 5 Can. Cr. Cas., 312. (67) Er p. Reid, 49 J. P., 600; Er p. Lewis, 16 Cox C. C., 449; R. v. Cotham. [1898] 1 Q. B., 802. And see R. v. Bros, 66 J. P., 54. |