2ND EDIT. REVISED STATUTES 1906 REMARKS trate for an adjournment, instead of ignoring the summons. (74) On the return of a summons in a summary proceeding before justices of the peace, the person summoned must wait a reasonable time after the hour named in the summons, when the justices are, at that hour, engaged in other official business. (75) In summary mat ters before a justice, the information cannot be amended at the hearing, on the non-appearance of the accused, so as to charge a separate and distinct offence from that for which the summons was issued. (76) Sec. 854. Sec. 719. Non-appearance of prosecutor. Dismissal or Adjournment.. If. upon the day and at the place so appointed, the defendant appears voluntarily in obedience to the summons in that behalf served upon him, or is brought before the justice by virtue of a warrant, then, if the complainant or informant, having had due notice, does not appear by himself, his counsel, solicitor or agent, the justice shall dismiss the complain t or information unless he thinks proper to adjourn the hearing of the same until some other day upon such terms as he thinks fit. Altered, as here indicated in itali's. Sec. 855. Sec. 720. Proceedings when both parties appear. If both parties appear, either personally or by their respective counsel solicitors or agents before the justice who is to hear and determine the complaint or information such justice shall proceed to hear and determine the same. Altered, as here indicated in italics. Where separate charges for similar offences are pending before the magistrate, either of which by an amendment could have been tried under the process for the other, the magistrate should not, after hearing evidence on the one offence, adjourn the trial thereof and hear evidence upon the other offence; and a conviction in the second is made without jurisdiction if the evidence in the first was likely to influence the magistrate against the accused in the second charge, although the first charge was dismissed. (77) A single conviction for two separate offences may be quashed, although the accused did not appear before the justice, if it cannot (74) R. v. Craig, 10 Can. Cr. Cas.. 249. (75) R. v. Wipper, 5 Can. Cr. Cas., 17. (76) R. v. Lyons, 10 Can. Cr. Cas., 130. (77) R. v. Burke, (No. 2), 8 Can. Cr. Cas., 14. 2ND EDIT. REVISED STATUTES 1906 ᎡᎬᎷᎪᎡᏦᏚ be ascertained from the proceedings for which separate offence the justice intended to convict. (77a) Where three separate charges for similar offences each committed within a few days of the other are consecutively tried by a magistrate on the one day, and the magistrate announces a conviction or acquittal at the conclusion of each case, it is no objection to the validity of the trials that they were intermixed by the reservation of the question of punishment, until after the conclusion of all three trials. (78) Sec. 856. Sec. 721. Arraignment of Accused. If the defendant is personally present at the hearing, the substance of the information or complaint shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted, or why an order should not be made against him, as the case may be. 2. If the defendant thereupon admits the truth of the information or complaint, and shows no sufficient cause why he should not be convicted. or why an order should not be made against him, as the case may be, the justice present at the hearing shall convict him or make an order against him accordinglv. 3. If the defendant does not admit the truth of the information or complaint, the justice shall proceed to inquire into the charge and for the purposes of such inquiry shall take the evidence of witnesses both for the complainant and accused in the manner provided by Part XIV. in the case of a preliminary inquiry. 4. The prosecutor or complainant is not entitled to give evidence in reply if the defendant has not adduced any evidence other than as to his general character. 5. In a hearing under this Part the witnesses need not sign their depositions. Slightly altered, as here set forth. If the accused is, in fact, present before the magistrate who has jurisdiction over the person and the offence, the hearing of the charge may be lawfully proceeded with, notwithstanding that the (77a) Simpson v. Lock, 7 Can. Cr. Cas., 294. (78) R. v. Bigelow, 8 Can. Cr. Cas., 132. 2ND EDIT. REVISED STATUTES 1906 REMARKS warrant, on which the accused was arrested, was executed by a person not legally qualified for that purpose. (79) Paragraph 3 of the above section 721 provides for the taking of evidence according to the provisions of Part XIV.. ante, section 682 (par. 3) of which Part requires the evidence to be taken down in writing. And, so, it has been held that a summary conviction for vagrancy is bad, if made upon evidence not reduced to wri ting. (80) The failure of the justices in a summary conviction matter to take down in writing depositions of the witnesses both for the complainant and the accused, is a ground for quashing the conviction on certiorari. (81) Sec. 857. Sec. 722. Adjournment. Before or during the hearing of any information or complaint the justice may, in his discretion adjourn the hearing of the same to a certain time or place to be then appointed and stated in the presence and hearing of the party or parties, or of their respective counsel, solicitors or agents then present, but no such adjournment shall be for more than eight days. 2. If, at the time and place to which the hearing or further hearing is adjourned, either or both of the parties do not appear, personally or by his or their counsel, solicitors or agents respectively, before the justice. or such other justices as shall then be there, the justice who is then there may proceed to the hearing or further hearing as if the party or parties were present. 3. If the prosecutor or complainant does not appear the justice may dismiss the information, with or without costs, as to him seems fit. 4. Whenever any justice adjourns the hearing of any case he may suffer the defendant to go at large or may commit him to the common gaol or other prison within the territorial division for which such justice is then acting, or to such other safe custody as such justice thinks fit, or may discharge the defendant upon his recogniz (79) Ex p. Giberson, 4 Can. Cr. Cas.. 537. (81) Denault v. Robida, 8 Can. Cr. Cas., 501. 2ND EDIT. REVISED STATUTES 1906 REMARKS ance, with or without sureties at the discretion of such justice, conditioned for his appearance at the time and place to which such hearing or further hearing is adjourned. 5. Whenever any defendant who is discharged upon recognizance, or allowed to go at large, does not appear at the time mentioned in the recognizance or to which the hearing or further hearing is adjourned the justice may issue his warrant for his apprehension. Altered as here indicated in italics. An adjournment of the hearing of a complaint under the summary convictions clauses of the Code cannot be made by the Clerk of the Court in the absence of the magistrate to a date more than eight days after that when the last adjournment was ordered by the magistrate. (82) It is not competent for magistrates, where an information charges an offence which they have no jurisdiction to try sum-. marily, to convert the charge into one which they have jurisdiction to try summarily, and to so try it on the original information. (83) DEFECTS AND OBJECTIONS. Sec. 846. Sec. 723. Proceedings not objectionable on certain Unchanged. grounds. A conviction by a magistrate on a summary trial for keeping a common bawdy house need not specify the location of the house further than to shew that it was at a place within the jurisdiction of the Court. (84) A warrant of commitment under a summary conviction must show on its face that the person by whom it is made has magisterial authority at the place where the offence occurred; and an objection in this respect is not cured by the above section 723. (85) A warrant of remand signed with the addition of the letters "J. P.", after the signature, and containing a reference to the signer or some other justice "for the county, must be taken to shew judisdiction on its face. (86) Sec. 847. Sec. 724. Variance or defect, as to time when or as to place where, etc., not to be deemed material. Unchanged. (82) Paré v. Recorder of Montreal, 10 Can. Cr. Cas., 295. (83) R. v. Dungey, 5 Can. Cr. Cas., 38. See Ex p. Duffy, 8 Can. Cr. Cas.. 277. (84) R. v. Shepherd, 6 Can. Cr. Cas., 463. (85) R. v. Gow, (alias Joe), 11 Can. Cr. Cas., 81. (86) Ex p. Hilchie, 11 Can. Cr. Cas., 85. 2ND EDIT. REVISED STATUTES 1906 REMARKS The variance between the information laid and the evidence adduced, referred to, in this section, as not being material is merely a difference between the mode of stating and the mode of proving one and the same thing in substance; and, therefore, where the evidence adduced establishes something entirely different from that charged, the objection to the variance may be taken and allowed. As, if a defendant were summoned for an assault, and the evidence showed, instead of an assault, that the defendant did some slight damage to property, for which, if charged therewith, he might have been summarily tried, the variance would be a good ground of objection, and ought to be sustained. Where an information differs from the evidence by stating the complaints to be "T. B. and his partners," instead of an incorporated company by its corporate name, it is such a variance as is cured by the above section. (87) But it is different where a manager of a company is summoned instead of the company itself. (88) An information for the illegal selling of liquor, under the Ontario Liquor License Act, cannot be amended, if the amendment would have the effect of charging an offence of a date more than thirty days before the making of the amendment, there being in the Act a provision limiting the time for commencing prosecutions to thirty days. (89) A summary conviction for being "a loose, idle person or vagrant", without specifying in what the vagrancy consisted is void. for uncertainty. (90) Sec. 907. Sec. 725. Proceedings not objectionable on certain Meaning unchanged. other grounds. ADJUDICATION. Sec. 858. Sec.726. Justice may convict, make an order, or disUnchanged. miss. It has been held, in a New Brunswick case, that after the evidence has been heard, the justice is not bound either to convict or discharge the defendant, but that he may allow the prosecutor to withdraw the charge, although another information covering the same charge has been laid by the same prosecutor against the same defendant, and the determination thereof is still pending. (91) Sec. 859. Sec. 727. Minute of conviction or order. If the justice convicts or makes an order against the (87) Whittle v. Frankland, 31 L. J. M. C., 81. (90) R. v. McCormack, 7 Can. Cr. Cas., 135. (91) Er p. Wyman, 5 Can. Cr. Cas., 58. |