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DUTIES OF JUSTICES OF THE PEACE.

CON. STAT. C., CAP. CII.

AN ACT RESPECTING THE DUTIES OF JUSTICES of the peace, out of SESSIONS, IN RELATION TO PERSONS CHARGED WITH INDICTABLE OFFENCES.

Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows:

a Justice of the

Peace may grant

a warrant to cause a person charged there

with to be

brought before

1. In all cases where a charge or complaint (A) is For what offences made before any one or more of Her Majesty's Justices of the Peace for any territorial division in this province, that any person has committed, or is suspected to have committed, any treason, or felony, or him." any indictable misdemeanor or offence within the limits of the jurisdiction of such Justice or Justices of the Peace, or that any person guilty or suspected to be guilty of having committed any such crime or offence elsewhere out of the jurisdiction of such Justice or Justices, is residing or being, or is suspected to reside or be within the limits of the jurisdiction of such Justice or Justices, then, and in every such case, if the person so charged or complained against is not in custody, such Justice or Justices of the Peace may issue his or their warrant (B) to apprehend such person, and to cause him to be brought before such Justice or Justices, or any other Justice or Justices for the same territorial division.

the party may

2. In all cases, the Justice or Justices to whom In what cases the charge or complaint is preferred, instead of issu- be summoned ing in the first instance his or their warrant to appre-arst instance.

instead of issuing a warrant in the

Warrant to

apprehend party

⚫ indictment is

found.

hend the person so charged or complained against, may, if he or they think fit, issue his or their summons (C) directed to such person, requiring him to appear before the said Justice or Justices, at the time and place to be therein mentioned, or before such other Justice or Justices of the same territorial division as may then be there, and if, after being served with such summons in manner hereinafter mentioned, he fails to appear at such time and place, in obedience to such summons, the said Justice or Justices, or any other Justice or Justices of the Peace for the same territorial division, may issue his or their warrant (D) to apprehend such person so charged or complained against, and cause such person to be brought before him or them, or before some other Justice or Justices of the Peace for the same territorial division, to answer to the said charge or complaint, and to be further dealt with according to law; but any Justice or Justices of the Peace may issue the warrant hereinbefore first mentioned, at any time before or after the time mentioned in such summons for the appearance of the said accused party.*

3. In case an indictment be found by the grand against whom an jury in any court of oyer and terminer or general gaol delivery, or in any court of general or quarter sessions of the peace, against any person then at large, and whether such person has been bound by any recognizance to appear to answer to any such charge or not, and in case such person has not appeared and pleaded to such indictment, the person who acts as clerk of the Crown, marshal, or clerk of assize at such court of oyer and terminer, or gaol delivery, or as Clerk of the Peace at such sessions, shall, at any time after the end of the sessions

"

*Though power is by the above section given to the Justice of the Peace, "in all cases to issue his summons, yet, it should not be issued in any case of treason or felony.

of oyer and terminer, or gaol delivery, or sessions of the peace, at which such indictment has been found, upon application of the prosecutor, or of any person on his behalf, and on payment of a fee of twenty cents, grant unto such prosecutor or person a certificate (F) of such indictment having been found; and upon production of such certificate to any Justice or Justices of the Peace for the territorial division in which the offence is in such indictment alleged to have been committed, or in which the person indicted resides, or is supposed or suspected to reside or be, such Justice or Justices shall issue his or their warrant (G) to apprehend the person so indicted, and to cause him to be brought before such Justice or Justices, or any other Justice or Justices for the same territorial division, to be dealt with according to law.*

person so

4. If such person be thereupon apprehended and Commitment. brought before any such Justice or Justices, such Justice or Justices, upon its being proved upon oath or affirmation before him or them that the apprehended is the person charged and named in such indictment, shall without further inquiry or examination, commit (H) him for trial or admit him to bail in manner hereinafter mentioned.†

If person indicted

be already in other offence,

prison for some

Justice may

5. If the person so indicted is confined in any gaol or prison for any other offence than that charged in such indictment at the time of such application and order him to be production of such certificate to such Justice or Justices as aforesaid, such Justice or Justices, upon its or otherwise dis

detained until

removed by writ

of habeas corpus,

charged.

* Whenever a prosecutor shall have preferred a bill of indictment against a defendant, and shall move the court for process to issue upon the said indictment against the said defendant, the prosecutor so applying should before such process issue, himself enter into such recognizance as the court shall direct, to prosecute the law with effect against the said defendant. (Dickinson's Quarter Sessions, by Tyrwhitt, page 228, and note H.)

The Clerk of the Peace should keep blank warrants to apprehend, to be issued under this section, and also the warrant of commitment to be issued by the Justice under the 4th section; and should cause a copy of each to accompany each certificate under the third section.

Though it would from this section appear that a Justice can bail a prisoner

Not to prevent

the issuing of

being proved before him or them upon oath or affirmation, that the person so indicted and the person so confined in prison are one and the same person, shall issue his or their warrant (I), directed to the gaoler or keeper of the gaol or prison in which the person so indicted is then confined as aforesaid, commanding him to detain such person in his custody, until, by Her Majesty's writ of habeas corpus, he be removed therefrom for the purpose of being tried upon the said indictment, or until he be otherwise removed or discharged out of his custody by due course of law.

6. Nothing hereinbefore contained shall prevent bench warrants the issuing or execution of bench warrants, whenever any court of competent jurisdiction thinks proper to order the issuing of any such warrant.*

Warrant may

be issued on Sunday,

When a charge is made, if a warrant is to be issued, information, &c., upon oath, &c.

7. Any Justice or Justices of the Peace may grant or issue any warrant as aforesaid, or any search warrant on a Sunday, as well as on any other day.

8. In all cases when a charge or complaint for an indictable offence is made before Justice or Jusany tices aforesaid, if it be intended to issue a warrant in the first instance against the party charged, an information and complaint thereof (A) in writing, on the oath or affirmation of the informant, or of

brought before him, upon a warrant issued under the authority of the second section of this Act, yet, upon perusal of section 52, it will be found that, in cases of felony, they cannot bail, because they cannot peruse the evidence and decide that it does not furnish such a strong presumption of guilt as to warrant his committal for trial."

*When the party indicted is under recognizance to appear at the sessions at which the indictment is found, no process should be had against him during the session, because it is looked on, in law, as one day, whatever may be its duration, and the defendant has the whole of it in which to make his appearance; but if he has not appeared, the prosecutor may bespeak a bench warrant during the session, which will, it is said, be issued at the close thereof.

If no bench warrant be applied for before sessions are over, the certificate provided for by the third section should issue. (Dickinson's Quarter Sessions, 230, 2 Hawkins, ch. 27, sec. 8.)

some witness or witnesses in that behalf, shall be laid before such Justice or Justices.*

mons to be issued

rant,information,

on oath.

9. When it is intended to issue a summons instead When if sumof a warrant in the first instance, the information instead of a warand complaint shall also be in writing, and be sworn &c., need not be to or affirmed in manner aforesaid, except only in cases where by some Act of Parliament it is specially provided that such information and complaint may be by parole merely, and without any oath or affirmation to support or substantiate the same.*

lowed for alleged

defect in form or

substance.

10. No objection shall be taken or allowed to any No objection alsuch information or complaint for any alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecution, before the Justice or Justices who takes the examination of the witnesses in that behalf as hereinafter mentioned.

Justice may

to search dwel

11. If a credible witness proves upon oath before In certain cases, a Justice of the Peace, that there is reasonable cause grant a warrant to suspect that any property whatsoever, on or with ling house, &c. respect to which any larceny or felony has been committed, is in any dwelling house, outhouse, garden, yard, croft, or other place or places, the Justice may grant a warrant (E 2) to search such dwelling house, garden, yard, croft, or other place or places, for such property.

being laid, Jus

the same may

or warrant for

12. Upon such information and complaint being Upon complaint so laid as aforesaid, the Justice or Justices receiving tices receiving the same may, if he or they think fit, issue his or issue summons their summons or warrant, as herein before directed, appearance of to cause the person charged to be and appear before him or them, or any other Justice or Justices of the Peace for the same territorial division, to be dealt

party charged.

* The marginal notes to sections 8 and 9 are calculated to mislead, by causing the person perusing them to entertain the opinion that an information need not be upon oath unless a warrant is to be issued; whereas, the information must be in writing and upon oath, in all cases except those specially provided for, such as the case of cruelty to animals.

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