Sec. 839.) Sec. 705. Definitions. Sec. 900. 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; (1) (b) the court' in the sections of this Part (c) district' or 'county' includes any ter- (e) clerk of the peace' includes the prop- Disqualifying Interest or Bias. There are instances upon rec (1) Taken from subsec. (c) of the old sec. 839. (2) Taken from paragraph 1 of the old sec. 900. (3) Taken from subsections (d) and (e) of the old section 839. (4) Taken from subsection (b) of the old sec. 839, but added to as here set forth. 2ND EDIT. REVISED STATUTES 1906 REMARKS ord of magistrates being punished for acting as judges in matters in which they themselves were parties. (5) Where it appeared, that at the time of a trial before a parish court commissioner, the plaintiff was one of the commissioner's own servants, it was held, upon a review of the commissioner's decision, that it was improper for him to sit, and a non-suit was ordered. (6) Any pecuniary interest, however slight, even if indirect, will, as a rule, disqualify a magistrate from taking part in the decision of a case. (7) A magistrate, engaged in the same kind of business as a trader prosecuted under the Transient Traders' License Law, is thereby disqualified from adjudicating upon the charge. (8) A justice should be entirely free from prejudice, bias or partiality in respect of all matters before him. (Sa) Justices should avoid giving any ground for the belief that they influence others in arriving at a decision. Where during the hearing of an appeal from a refusal to grant a license, one of the justices, who had refused the license, was present on the bench. and conversed with some of the magistrates who were hearing the appeal, on some matter unconnected with the appeal, it was held that, being present, he formed part of the court, and that, although in reality he did not act in the hearing or determination of the appeal, the order of the Sessions was invalid. (9) Although the interest, in order to be a disqualifying one, need not be pecuniary, it must, if not pecuniary, be of a substantial nature. The mere possibility, not amounting to a likelihood, of bias, in favor of one of the parties, does not, ipso facto, avoid the justice's decision. In order to have that effect, the bias, or likelihood of bias, must be shown, at least, to have a real basis; and, if a magistrate has such a substantial interest, whether pecuniary or not, as to make it likely for him to have a real bias in the matter, he should take no part in the decision, and should entirely withdraw during the whole case. (10) Where, for instance, at a vestry meeting, which considered the (5) Mayor of Hereford's Case, per Holt, C. J., 2 Ld. Raym., 766. (6) Gallant v. Young, 11 C. L. T., 217, 218. (7) R. v. Chapman, 1 O. R., 582. (8) R. v. Leeson, 5 Can. Cr. Cas., 184. (8a) R. v. Eli, 10 O. R.. 727; 13 Ont. A. R., 526. (9) R. v. O'Grady, 7 Cox C. C., 247. (10) R. v. Rand, 35 L. J. M. C., 157; L. R., 1 Q. B., 230; R. v. Meyer, 1 Q. B. D., 173; R. v. Sunderland, J. J., [1901], 2 K. B., 257; R. v. Dublin, J. J., [1894], 2 Q. B.. Ir., 527; R. v. Farrant, 20 Q. B. D., 58; R. v. Cumberland, J. J., 58 L. T., N. S., 491. 2ND EDIT. REVISED STATUTES 1906 REMARKS obstruction of a highway, the resolution, directing that the alleged obstructor be notified to remove the obstruction, was the result of a motion made by a justice who afterwards sat, and, adjudicated upon the case taken, against the party so notified, for having failed to remove the obstruction, it was held that the justice was disqualified from trying the case, because his having moved the resolution was ground for a reasonable apprehension of real bias on his part. (11) The mere fact that a justice, as a druggist, fills medical prescriptions containing alcohol, does not give him such an interest as disqualifies him from sitting on a charge against a person for selling liquor without a license (12) nor does the fact that the justice is a license inspector for a district outside of and adjoining that where the offence in question was committed disqualify him. (13) With regard to the likelihood of bias. on account of relationship, it has been held that where the prosecutor, who was entitled to a share of the fine, was the justice's father, the justice was disqualified. (14) And a magistrate, whose grandfather was a brother of the defendant's great grandmother was held to be incompetent under the Canada Temperance Act. (15) A magistrate was held to be disqualified in a case in which the defendant herself was the widow of the magistrate's deceased son. (16) But, where the defendant was the husband of the widow of the magistrate's deceased son, it was held that there was no relationship by affinity between the magistrate and the defendant, so as to disqualify the magistrate from hearing the case. (17) And the fact that the prosecutor, acting as a public officer, but not entitled to any share in the fine, was the husband of the justice's wife's sister was held not to disqualify the justice. (18) It has been held that the fact that a qui tam action is pending against the magistrate at the suit of the accused's father is not a sufficient ground of bias. (19) It has been held that a magistrate is disqualified from trying a case where there is a bona fide action for official misconduct pending against him at the suit of the husband of the accused, (20) (11) R. v. Gaisford, [1892], 1 Q. B., 381. (12) R. v. Richardson, 20 O. R., 514. (13) Ex p. Michaud. 34 N. B. R., 123; 4 Can. Cr. Cas., 569. (14) R. v. Longford, 15 O. R., 59. (15) Er p. Jones, 27 N. B. R., 552. (16) Ex p. Margaret Wallace, 27 N. B. R., 174. See Ex p. Doak, 19 C. L. T., Occ. N., 425. (17) Ex p. William Wallace, 26 N. B. R., 593. (18) R. v. Major, 33 C. L. J., 162; 29 N. S. R.. 273. (19) Ex p. Thomas Gallagher, 33 C. L. J., 547. (20) Ex p. Hannah Gallagher, 4 Can. Cr. Cas.. 486. 2ND EDIT. REVISED STATUTES 1906 REMARKS although, if it appear that the action is a mere sham to attempt to disqualify the magistrate, its pendency would not operate as a disqualification. (21) Where some persons were associated together to aid in enforcing the Canada Temperance Act, and one of these persons, N., with money furnished by the others, purchased liquors so as to maintain a prosecution carried on at the expense of the other members of the association, and, on the evidence of N., (a cousin of the justice who tried the case), the defendant was convicted, it was he'd that the justice was not disqualified. (22) When the magistrate is one of a class of persons for whose benefit the prosecution is instituted, this will, as a rule, be sufficient to disqualify him. Thus, where a justice was a member of a division of the Sons of Temperance, which carried on a prosecution for selling liquor, he was held incompetent to try the case, and a conviction obtained before him was held bad. (23) And justices, who belonged to a temperance alliance of which the president is the party prosecuting, and to which association any fine to be imposed for an offence against the liquor law is payable, have been held, disqualifying from trying a charge; and the proceedings were not validated by the fact that, between the time. when the information was received by such justices and the hearing of the charge, the justices had withdrawn from the association. (24) But where, in prosecutions for offences against the Canada Temperance Act, taken before magistrates who were "thorough-going Scott Act men," it was alleged that these magistrates had said that, in no case of conviction, would they inflict a less fine than $50, and that one of them was, moreover, a member of a local committee for taking prosecutions under the Act; and it transpired that, before the Act came into operation in the county, he had resigned from the committee, it was held that there was no disqualifying interest in the magistrates, nor any real or substantial bias attributable to them, nor any reason why they should not lawfully adjudicate in the cases. (25) A justice who was a shareholder in a railway company was he'd to be disqualified from convicting a person of the offence of travelling on the company's railway without ticket. (26) But it has been held that a justice is not disqualified when he is merely one of the ordinary members of a society on whose be (21) Er p. Scribner, 32 N. B. R., 175. (22) Ex p. Grieves, 29 N. B. R., 543. (23) R. v. Simmons, 14 N. B. R., 159. (24) Daignault v. Emerson et al., 5 Can. Cr. Cas.. 534. (25) R. v. Klemp, 10 0. R., 143. (26) R. v. Hammond, 9 L. T., 423. 2ND EDIT. REVISED STATUTES 1906 REMARKS half the prosecution is brought, and when such ordinary members have no control over or responsibility for any prosecution brought by the society; (27) nor where he is simply an honorary member of the prosecuting society, to whose funds he has contributed a small sum of money, but in whose affairs he has no right to take any part. (28) Where the justice was a shareholder in a company owning ships insured in concerns of which the prosecutor was agent, the court thought that the justice was not disqualified to act. (29) In many cases, where the justice, as one of a class, may be remotely interested in the result of a decision, the disqualification is, by statute, expressly removed, and the justice is empowered to act. (30) But the removal of the disqualification by statute is limited to that therein provided for, and does not extend so far as to relieve a magistrate from disqualification, if the circumstances are such that there is likelihood of his being biassed; as, for instance, where he is not only a member of a municipal council, or of a local board of health. or other body, which passed the resolution directing the prosecution, but was, moreover, present at and voted for the passing of the resolution. In such a case he would be disqualified. (31) By section 578, ante, of the present Code, it is provided that no person who is a master or the father, son, or brother of a master in the trade or business in or in connection with which any offence of intimidation, under section 501, ante, is charged to have been committed, shall act as a magistrate or justice in any such case, or as a member of any court for hearing any appeal in any such case. A conviction rendered by an interested or biassed magistrate may, when there has been no waiver of the objection, be set aside by means of a certiorari; (32) or, when the ground of objection is known at or before the hearing, the disqualified magistrate may be prevented from acting, and the proceedings before him may be stopped by means of a prohibition. (33) (27) Allinson v. General Council, [1894], 1 Q. B., 750. See, also, R. v. Burton, [1897], 2 Q. B., 468; and R. v. Mayor of Deal. 35 L. T., 439. (28) R. v. Herrell, 1 Can. Cr. Cas., 510. (29) R. v. Mackenzie, 17 Cox C. C.. 542. (30) Er p. Workington Overseers, [1894], 1 Q. B., 418; R. v. Bolingbroke. [1893]. 2 Q. B.. 347. See Er p. McCoy. 1 Can. Cr. Cas., 410; R. v. Grimmer, 25 N. B. R., 424; R. v. Hart, 2 B. C. R., 264; Er p. Driscoll. 27 N. B. R., 216. (31) R. v. Lee, 9 Q. B. D., 349; R. v. Gaisford, [1892], 1 Q. B.. 38; R. v. Henley, [1892], 1 Q. B., 504; Tessier v. Desnoyers, Q. J. R., 12 S. C., 35; R. v. Milledge, 4 Q. B. D., 352; R. v. Douglas, [1898]. 1 Q. B., 560. (32) R. v. Sunderland, J. J., [1901], 2 K. B., 257. (33) R. v. Brown, 16 O. R., 41. |