A Treatise on Criminal Law as Applicable to the Dominion of Canada

forth the substantial charge contained in the information, so that the defendant has reasonable notice of what he has to answer. (a)

An application to quash an indictment should be made in limine by demurrer or motion, or the defendant should wait the close of the evidence for the prosecution to demand an acquittal. (b)

Applications to quash an indictment are considered applications to the discretion of the Court. (c)

A defective indictment may be quashed on motion as well as on demurrer. (1)

1t is unusual to quash an indictment, on the application of a defendant, when it is for a serious offence, unless upon the clearest and plainest grounds; but the Court will drive the party to a demurrer, or motion in arrest of judgment, or writ of error. It is, therefore, a general rule that no indictments which charge the higher offences, as treason or felony, will be thus summarily set aside. (e)

The omission of the residences and occupations of Grand Jurors, in the list, and in the panel, was held sufficient ground for quashing an indictment for felony. (ƒ)

Where an indictment charges no offence against law, the objection may be properly taken in arrest of judgment, or the indictment may be demurred to, or a writ of error will lie. (g)

No mere formal defect, in an indictment, can be objected to after the prisoner is found guilty and sentenced at the Court of Oyer and Terminer. (h)

An objection to an indictment, as insufficient in law,

(a) Reg. v. Broad, 14 U. C. C. P. 168.

(b) Reg. v. Roy, 11 L. C. J. 90, per Drummond, J. See 32 & 33 Vic. c. 29,

s. 32.

(e) Reg. v. Belyea, supra, 225 per Dodd, J.

(ƒ) Ib. 220.

(g) Reg. v. Clement, 26 U. C. Q. B. 300, per Draper, C. J.

(h) Horseman v. Reg. 16 U. C. Q. B. 544, fer Robinson, C. J.

made after the swearing of the jury, and after the prisoner was given in charge to them, was held not too late; for otherwise there never could be a motion in arrest of judgment. (a) Semble, an objection may be made at any time for a substantial, but not for a formal, defect, and that the 32 & 33 Vic., c. 29, s 32, only applies to the latter. (b)

The forms of indictment in the 32 & 33 Vic., c. 29, schedule A., are intended as guides, to simplify forms of indictments. They cannot apply to cases to which they are not applicable, so as to misinform a person of the nature of the offence with which he stands charged. (c) The use of the forms is discretionary with the person framing the indictment. (d)

The forms of indictment in the schedule L, title XL, of of the (N. B.) Rev. Stats., were inapplicable to offences not referred to in that title. (e)

It has been held that, before pleading to an indictment, the defendant must submit to the jurisdiction of the Court. (f)

The prisoner must plead in abatement before he pleads in bar. (g)

No more than one plea can be pleaded to any indictment for misdemeanor or criminal information. (1)

(a) Reg. v. Ryland, L. R. 1 C. C. R. 99; 37 L. J. (M. C.) 10. (b) Ib.

(e) Reg. v. M'Laughlin, 3 Allen, 159.

(f) Reg. v. Maxwell, 10 L. C. R. 45.

(g) Whelan v. Reg. 28 U. C. Q. B. 47.

(h) Reg. v. Charlesworth, 1 B. & S. 460; 31 L. J. (M. C.) 26.

CHAPTER X.

PRACTICE.

JUSTICES of the Peace were appointed in the reign of Edward the first, and their appointment has been continued until the present time. (a)

Under the Con. Stats. Can. c. 100, s. 3, the oath of qualification, by a Justice of the Peace must have been taken before some Justice of the Peace of the County for which he intended to act. It could not be administered by the Clerk of the Peace for such County, under the writ of Dedimus Potestatem issued with the Commission of the Peace. (b)

The 29 Vic., c. 12, recites that certain Justices had, theretofore, in error taken and subscribed the oath of qualification before a Clerk of the Peace of the District or County, or before a Commissioner assigned, by Dedimus Potestatem, to administer oaths and declarations, and it confirms such oaths so taken and indemnifies the Justice from all penalties, and forfeitures in respect thereof. The Act also prescribes before whom oaths shall, hereafter, be taken.

A certificate purporting to be under the hand and seal of the Clerk of the Peace, that there was no declaration of the Justice's qualification filed in his office, is not sufficient proof that the Justice is not properly qualified. (c) The Justice, in this case, signed a recognizance in the

(a) Reg. v. Atkinson, 17 U. C. C. P. 300, per J. Wilson, J. (b) Herbert, q. t. v. Dowswell, 24 U. C. Q. B. 427.

name of "N. Dickey, J. P." and the certificate shewed that no oath of qualification was filed by "Nathaniel Dickey." It seems this would not be sufficient, and that the identity of the Justice acting, with the one whose qualification was filed, should have been proved. (a)

Under 29 & 30 Vic., c. 51, s. 357, a Police Magistrate for a city, is ex officio, a Justice of the Peace for the County, in which such city lies, and by s. 360, a Justice of the Peace for a county in which a city is, may try and investigate any case in a city, where the offence has been committed in the county, or union of counties, in which such city is, or which such city adjoins. (b) Under s. 357 as amended by s. 38, of the (Ont.) 31 Vic., c. 30, an alderman is not ex offecio legally authorized to act as a Justice of the Peace, until he has taken the oath of qualification as such. (c)

The plain import of ss. 356, 360, 367 and 373, is to establish certain local Courts, having limited criminal jurisdiction, and to define the respective jurisdictions of the Police Magistrate of a city situate within a County, and of the Justices of the Peace of that County, in respect of offences committed within the city, and County respectively. (d)

Under the Commission of the Peace, Justices have a general power for conservation of the peace, and the apprehension and commitment of felons. The Commission gives them jurisdiction in all indictable offences, to discharge, admit to bail, or commit for trial. (e)

The maxim, omnia præsumuntur rite esse actu, does not apply to give jurisdiction to Justices, or other inferior

(a) Reg. v. White, 21 U. C. C. P. 354. (b) Reg. v. Mosier, 4 U. C. P. R. 64.

(d) Reg. v. Morton, 19 U. C. C. P. 27, per Gwynne, J.

(e) Connors v. Darling, 23 U. C. Q. B. 543, per Gowan, J.

tribunals. (a) On this principle, in a prosecution for a penalty, under a by-law of a corporation, the by-law must be proved; for it must appear on the face of the proceedings that there is jurisdiction. (b)

A Justice's jurisdiction depends, not on jurisdiction over the subject matter, but, over the individual arrested, and to give him that jurisdiction, there should be an information properly laid. (c)

Where a limited authority is given to Justices of the Peace, they cannot extend their jurisdiction to cases, not within it, by finding as a fact that which is not af act, and their warrant in such a case will be no protection to the officer who acts under it. (d)

Where a Statute gives to Justices a discretion, whether they will do a particular thing, it does not enable them, having heard the case, to refuse a warrant, because they think the law under which they are called upon to act is unjust. (e)

Where the charge laid as stated in the information, does not amount in law to the offence, over which the Justice has jurisdiction, his finding the party guilty by his conviction, in the very words of the Statute will not give him jurisdiction. The conviction would be bad on its face, all the proceedings being before the Court. (ƒ)

In a prosecution before Justices, their jurisdiction is ousted by the accused setting up a claim of right, yet that claim must be bona fide, and the mere belief of the accused unsupported by any ground for the claim, will be insufficient. (g)

(a) Reg. v. Atkinson, 17 U. C. C. P. 302.

(b) Reg. v. Wortman, 4 Allen, 73; Rex v. All Saints, Southampton, 7 B. & C. 785.

(d) The Haidee, 10 L. C. R. 101; The Scotia S. V. A. R. 160.

(e) Reg. v. Boteler, 4 B. & S. 959; 33 L. J. (M. C.) 101.

(f) Re McKinnon, 2 U. C. L. J. N. S. 327, per A. Wilson, J.

(9) Reg. v. Cridland, 7 E. & B. 853; 27 L. J. (M. C.) 28; Reg. v. Stimpson, 4 B. & S. 307; 32 L. J. (M. C.) 208.

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