2ND EDIT. REVISED STATUTES 1906 REMARKS C. APPLICATION OF PART. Sec. 840. Sec. 706. To all cases of summary conviction, etc. Subject to any special provision otherwise enacted with respect to such offence, act or matter, this Part shall apply to, (a) every case in which any person commits, or is suspected of having committed, any offence or act over which the Parliament of Canada has legislative authority, and for which such person is liable, on summary conviction, to imprisonment, fine, penalty or other punishment; (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. Unchanged in meaning. Since the printing of the present Supplement was commenced, the Industrial Disputes Investigation Act, 1907, (6 and 7 Ed. VII, ), has been passed by the Dominion Parliament. Section 53 of this Act makes it unlawful for any employer to declare or cause a lockout or for any employee to go on strike, on account of any dispute, prior to or during a reference of such dispute to a Board of Conciliation and Investigation in accordance with the Act. Section 58 of the Act provides that any employer declaring or causing a lockout, contrary to the provisions of the Act, shall be liable to a fine of not less than $100 and not more than $1,000 for each day that such lockout lasts. Section 59 enacts that any employee who goes on strike contrary to the provisions of the Act shall be liable to a fine of not less than $10 and not more than $50 for each day that such employee is on strike. Section 60 makes it a criminal offence, punishable by a fine of not less than $50 and not more than $1,000 for any person to incite, encourage or aid any employer to declare or continue a lockout or any employee to go or continue on strike contrary to the provisions of the Act. And section 61 provides that the procedure for enforcing these penalties shall be that prescribed by this Part, XV, of the Code. Ouster of Summary Jurisdiction.-The principle that, when property or title is in question, or, when there is a bona fide claim of right to do the act complained of, justices are ousted of 2ND EDIT. REVISED STATUTES 1906 REMARKS their summary jurisdiction, is not only a qualification raised by the law in the execution of penal statutes but it is also the subject sometimes, of special statutory enactment. Thus, it is provided, by section 709, infra, of the present Code, that no justice shall try any case of assault, in which any question arises as to the title to lands., etc., or as to any insolvency or any execution under the process of any court of justice. When a claim of title to land is set up by the defendant, the question for the justice to decide is whether the defendant's liability for the act charged against him, as a criminal offence, is contingent upon a decision of the question of title. (34) If the right set up could legally exist, the defendant could plead it in a civil action, but if it could not exist, why should the justices be ousted of their jurisdiction? The reason their jurisdiction is ousted is that they cannot try the right, but where the right cannot legally exist, there is no right to try. (35) There must be some color for the claim. (36) And it is for the justices to determine, from all the facts of the case, whether a claim of right. when put forward, is made bona fide and with a show of reason. (37) If they determine that it is not so made, it is their duty to proceed with and decide the case. (38) Still, if the grounds upon which they decide against the fairness and reasonableness of a claim of right be insufficient, the court will review their determination and over-rule it. (39) If the justices believe that there is a bona fide question of title, they have no jurisdiction. (40) And even when the matter is doubtful, it will be enough to stop their proceedings, and they cannot give themselves jurisdiction by a false decision. (41) A defendant was convicted of the offence of unlawfully and wilfully destroying or damaging a fence upon the complainant's land: and it was held, that, upon the evidence, there was, on the part of the defendant, such an honest belief reasonably entertained, in the existence of a right of way over a lane on the complainant's land as satisfied the section of the Code to the effect that there is no criminal offence under section 507 (now section 530), unless the act of damage is done "without legal justification or excuse and (34) South Norfolk v. Warren, 12 C. L. T., 512. (35) Remarks of Blackburn, J., in Hudson v. McRae. 33 L. J. M. C., 65. (36) Rees v. Davies, 8 C. B.. (N. S.), 36. (37) R. v. Dodson, 9 Ad. & El., 704. (38) Mobberley v. Collingwood, 25 O. R., 625. (39) R. v. Dodson, supra. (40) Legg v. Pardoe, 30 L. J., M. C., 108. (41) R. v. Stimpson, 32 L. J., M. C., 208; R. v. Nunnely, 37 L. J., M. C., 260. 2ND EDIT. REVISED STATUTES 1906 REMARKS without color of right," and as rendered the conviction bad for want of jurisdiction; (42) It has been held that the proviso, contained in the Imperial Act relating to malicious injuries to property, to the effect, that nothing therein contained shall extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of, impliedly restricts the exemption of bona fide claims of right, from summary jurisdiction to cases, where the justices are satisfied of the fairness and reasonableness of the claims. (43) It has been held that, if the defendants, although bona fide acting upon supposed rights, have exceeded what was necessary for the assertion or protection of these rights, and have thus committed damage, they are criminally responsible for such excess. (44) But it has also been held that, in assault cases, a question of right is a good defence, even if excessive force was used; because the words of the proviso in the statute are large enough to exclude any case of assault whatever in which a question of title arises. (45) On the hearing of an information for unlawfully fishing in a non-navigable river, which was the private fishery of another, it was held that as a guilty mind was not a necessary ingredient to constitute the offence, the claim of the defendant as one of the public to the right to fish in the river did not oust the jurisdiction of the justices, and that on such an information the bona fide belief of the defendant that he had a right to fish in the river did not prevent his being convicted. (46) JURISDICTION. Sec 842. Sec. 707. Hearing by one or more Justices. 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. 2. If there is no such direction in any Act or law then the complaint or information may be heard, tried, determined and adjudged by any one justice for the territorial division where the matter of the complaint (42) R. v. Johnson, 40 C. L. J., 470. 2ND EDIT. REVISED STATUTES 1906 REMARKS or information arose: Provided that every one who aids, abets, counsels or procures the commission of any offence punishable on summary conviction, may be proceeded against and convicted either in the territorial division or place where the principal offender may be convicted, or in that in which the offence of aiding, abetting, counselling or procuring was committed. (47) Sec. 842. Sec. 708. Any one justice may do all acts before hearing. Any one justice may receive the information or complaint, and grant a summons or warrant thereon, and issue his summons or warrant to compel the attendance of any witnesses for either party, and do all other acts and matters necessary preliminary to the hearing, even if by the statute in that behalf it is provided that the information or complaint shall be heard and determined by two or more justices. 2. After a case has been heard and determined one justice may issue all warrants of distress or commitment thereon. 3. It shall not be necessary for the justice who acts before or after the hearing to be the justice or one of the justices by whom the case is to be or has been heard and determined. 4. If it is required by any Act or law that an information or complaint shall be heard and determined by two or more justices, or that a conviction or order shall be made by two or more justices, such justices shall be present and acting together during the whole of the hearing and determination of the case. (47) Notwithstanding sub-section 6 of section 842 of the old Code (now clause 1 of section 708 of the new Act), where a prosecution for an offence under the Canada Temperance Act is to be proceeded with before two justices of the peace, the information must be laid before two justices. (48) (47) Meaning unchanged; but the old section 842 is now divided into these three different sections, 707, 708 and 709. (48) Ex p. White, 3 Can. Cr. Cas., 94. 2ND EDIT. REVISED STATUTES 1906 REMARKS Sec. 842. Sec. 709. Assault cases in which any question of title to land, etc., is involved. -No justice shall hear and determine any case of assault or battery, in which any question arises as to the title to any lands, tenements, hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice. (47) A question of title, to be a defence in an assault case, must be a question of title to land, and not as to personal property. (49) The question as to whether the right to impound cattle is implied in the right of pasturage is not a question as to the title to land. (50) The question whether a township is forced to repair a highway. on the ground that it is a public road vested in the Crown as a provincial work, is not a question of title to land. (51) The question as to the terms of a tenancy has been held not to be a question of title to land. (52) But where the question is one as to the expiry of the landlord's title, and the defendant has become liable to another person for mesne profits, it is then a question of title to land. (53) If the question be one as to leasehold land, it ousts the jurisdiction. (54) And so does a cuestion as to the right of way across a railway. (55) or the right of easement on or under land. (56) It has been held that, in assault cases, a question of right is a good defence, even if excessive force be used: because the words of the enactment are large enough to exclude any case of assault whatever, in which a question of title to land arises. (57) The above section, (709), does not contain any provision requiring proof of reasonable grounds for the defendant's belief in his claim of title. It enacts that no justice shall hear and determine. any case of assault in which any question arises as to the title to land. So that no assault case, however clearly established, can be summarily tried by a justice, if a question of title to land is (47) The old sec. 842 is divided into three new sections, 707, 708 and 709. (49) White v. Fox, 49 L. J., M. C., 60. (50) Graham v. Spettigue, 12 Ont. A. R., 261. (51) Knight v. Medora, 14 Ont. A. R.. 112. (52) English v. Mulholland, 9 P. R., 145. (53) Montnoy v. Collier, 1 E. & B., 629. (54) Tompkins v. Jones. 22 Q. B. D., 599. (55) Cole v. Miles, 57 L. J., M. C., 132; R. v. Eardley, 49 J. P., 551. (56) Howorth v. Sutcliffe, [1895], 2 Q. B., 358. (5) R. v. Pearson, L. R., 5 Q. B., 237. |