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he acts ministerially; and, secondly, those over which the law gives the Justice summary jurisdiction, wherein he acts judicially.
Before we proceed to the consideration of offences generally, it may be found useful to give a short and connected outline of the ordinary practice of a magistrate's court. For this we must mainly consult Con. Stat. C. c. 102, for the duties of Justices in relation to persons charged with indictable offences, and Con. Stat. C. c. 103, for the duties of Justices in relation to summary convictions, which statutes we shall hereafter analyse under the titles, “ Judicial Duties of Justices” and “Ministerial Duties of Justices.”
PROCEDURE OF A MAGISTRATE'S COURT,
In all cases the first official step to be taken by the Justice is to receive an information or complaint in writing and upon oath generally, from a credible person, that an offence has been committed within his jurisdiction, such information or complaint stating as near as may be the name of the offender (if known), the nature of the offence, the person against whom, and the time when, and the place where the said offence was perpetrated. (For forms, see article “Information.”)
Upon receiving this information, the Justice should refer to the statute or by-law creating the offence, as to the mode of procedure; and if it is one over which he has summary jurisdiction, whether the complaint is made within the time prescribed by such statute or by-law; and if no time is limited, must be guided by Con. Stat. C. c. 99, s. 124, and Con. Stat. C. c. 103, s. 26, which direct that the prosecution of offences shall be commenced within three months after the commission of the offence.
It is recommended that the Justice should, on all occasions, when taking informations, carefully read over and explain
and too many are tempted to amuse themselves at the bar, and not unfrequently appear before the bench under the influence of liquor, thus inadvertently brought upon them.
The court having been opened by the constable announcing such opening, and calling for order, the names of the parties should then be called, and the information or complaint read to the accused by the Justice, and in cases of summary jurisdiction, the question asked, if he admit the truth of the complaint, or, if he have any cause to shew why he should not be convicted, or why an order should not be made against him, as the case may be (Con. Stat. C. c. 103, s. 37). If he voluntarily admit it, and offer no defence, the court has only to consider the amount of punishment to be inflicted (Con. Stat. C. c. 103, s. 38). It is always desirable to take the defendant's admission in writing, and signed by him if he will. If the offence be not admitted, the Justice must proceed to take the evidence of the complainant and his witnesses, and afterwards that of the witnesses for the defendant, having first sworn them on the Holy Evangelists. In this form, the party deposing taking the Testament in his right hand, the Justice shall repeat, “The "evidence you shall give, shall be the truth, the whole truth, “and nothing but the truth. So help you God.” The party then kissing the book, the oath is complete, and evidence may then be given, taking the whole down in writing as near as may be in the words of the witnesses; the evidence of each to be signed by him, as also by the Justice or presiding Justice. Before the witness signs the evidence he has given, it should be read over to him, to ascertain whether it has been correctly taken down, or that his right meaning has been expressed: any mistake should be corrected before he signs it. It must be remembered that the defendant cannot be examined as a witness for the complainant, or on his own behalf, in any criminal proceeding, which term seems to extend to all cases in which he is liable to be punished by fine or imprisonment; and the same disability attaches to the wife of the defendant. If the Justice should see any good cause for so doing, he may adjourn the hearing of the case to some future day, and in the
meantime commit the defendant to the common gaol, or may discharge him, upon his entering into a recognizance, with or without sureties, for his appearance at the time appointed (Con. Stat. C. c. 103, ss. 22 & 46). Persons charged with indictable offences may be remanded by warrant from time to time for any period not exceeding eight days at any one time, or he may be verbally remanded for any time not exceeding three clear days. (Con. Stat. C. c. 102, ss. 42 & 43).
If any witness neglect or refuse to attend, and proof on oath having been made of the service of the summons, a warrant may issue, to bring and have such person before the court (Con. Stat. C. c. 103, s. 17). Indeed, if the Justice be satisfied by evidence upon oath, that it is probable that the witness will not attend, unless compelled so to do, a warrant may be issued for a witness in the first place (Con. Stat. C. c. 103, s. 18); and a witness refusing to be examined on oath or affirmation, or refusing to answer such questions as may be put to him touching the matter in question, without offering any just excuse for such refusal, may be committed to gaol for any time not exceeding ten days, unless in the mean time he consent to be examined (Con. Stat. C. c. 103, s. 19). In many cases, particularly in indictable offences, it is desirable for the Justice to order the witnesses on both sides to leave the court; but it is important to observe, that if any witness should remain in court, notwithstanding any such order, his evidence cannot be safely refused.
It must be remembered that in all cases of summary conviction, the accused is admitted to make full answer and defence, and to have all witnesses examined and cross-examined by counsel or attorney; but in indictable offences, the statutes do not give the accused the same privilege. (Con. Stat. C. c. 103, s. 30; c. 102, s. 30).
INDICTABLE OFFENCES.--After the first examination of witnesses, they may be cross-examined by the prisoner; and when their evidence is completed, their depositions are to be read by the Justice to the accused; and then any statement he may make, after being duly cautioned, as directed in Con. Stat. O. c. 102, ss. 32 & 34, is to be taken down in writing as nearly as possible in his own words, signed by him, if he will, as well as by the acting Justice or Justices. (The form, as given by the statute, will be found under article “Statement of the Accused.")
JUSTICE'S SIGNATURE TO DEPOSITIONS.—It is requisite that the Justice should affix his signature to the deposition of each witness, in the following or similar form: “Sworn before me at — the — day of — A. D. 18—
. A- B , J. P.” The Justice or Justices having heard the evidence on both sides, the first question to determine is, whether the charge is sustained by the evidence; or, in indictable offences, although the offence may not be clearly proved, whether there is sufficient doubt to send the case to another tribunal; or the case may be adjourned for further hearing. If the case can be disposed of summarily, the Justice or Justices will adjudge the amount of the penalty to be imposed, under the limitations of the statutes .creating the offence, together with the costs, which should be recorded on the proceedings, together with the period of imprisonment, with or without hard labour, to be awarded in case of non-payment of fine and costs; a minute of which should be served on the defendant, if he have to pay money, for which no fee should be paid ; before which service no warrant of distress or commitment shall be issued (Con. Stat. C. c. 103, s. 52). (For minute, see article “Minute of Conviction.")
the mos the jud. SULD DECM
MAJORITY SHOULD DECIDE. — If more than one Justice be acting, the judgment should be according to the opinion of the majority. The chairman or presiding Justice may vote, but he is not entitled to a double or casting vote. If the Justices are equally divided in opinion, there should be no adjudication, but the Justices should adjourn the case to a future day, and then entirely rehear the case, when other magistrates may be present, or further evidence adduced. If no adjudication be made, nor the case postponed, the information may be laid again, if the time for doing so has not expired, and the
CE OF JUSTICES WIE that more than , divides the
proceedings be wholly recommenced. If the judgment be given, it may be altered during the same sitting, but not afterwards. Two or more Justices may lawfully do whatever any one Justice may do alone."
INTERFERENCE OF JUSTICES WITH EACH OTHER. — Although, as a general rule, it is advisable that more than one Justice should hear and determine all cases, as it not only divides the responsibility, but strengthens the public impression that the administration of justice is impartial and beyond suspicion; at the same time—although, it is to be hoped, of rare occurrencecases have occurred, where the Justice who issued the summons and those who took part at the hearing acted more like advocates than judges, and satisfied the parties present that partisan feelings were more likely to rule the judgment, than the calm, unbiassed opinion of the judge.
Hard LABOUR.—The statute under which a conviction is made must, in default of payment of penalty or damage, expressly authorize the addition of hard labour to the imprisonment, otherwise the convicting Justice has no authority to impose hard labour; and if he does so without such authority, the conviction is bad. And in offences for which hard labour may be given, the commitment need not expressly negative the hard labour, it being presumed that it is not ordered unless stated.
PUNISHMENT.—With respect to the punishment to be awarded in the event of conviction, it may be observed that the penalty or imprisonment ought in all cases to be proportionate to the nature and extent of the offence, and the circumstances of the offender; and where offences of any particular description are very prevalent, or on the increase, a more than ordinary degree of severity may become necessary. Justices should always bear in mind that the great object of penal legislation is not alone the reform of the criminal (desirable as this object may be), but also to deter others from the commission of crime. The punishment should not be so severe as to enlist the sympathy of the public on the side of the offender; nor, on the other hand, should it be so slight and injudiciously mild as to give just ground of