REVISED STATUTES OF ONTARIO.

CHAPTER 74.

An Act respecting Summary Convictions before Justices of the Peace.

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

PROCEDURE BEFORE JUSTICES.

1. Where a penalty or punishment is imposed under the authority of any statute of the Province of Ontario, or of any other statute or law now or hereafter in force in Ontario, and relating to matters within the legislative authority of the Legislature of the said Province, and is recoverable before, or may be inflicted by, a Justice or Justices of the Peace, or a Police or Stipendiary Magistrate, the like proceedings and no other shall and may be had for recovering the penalty, compelling the attendance of the parties or witnesses, hearing the complaint and for the conduct of the Court, the taking and estreating of recognizances, and the infliction of the punishment, and otherwise in respect thereof; and the convicting Justice, Justices, or Police or Stipendiary Magistrate shall perform the like duties in respect thereto, and in respect of any conviction or order made by him or them by virtue of such statute, as, under the statutes of the Dominion of Canada then in force might be had and should be performed, if such penalty or punishment had been imposed by a statute of Canada, unless in any Act hereafter passed imposing such penalty or punishment it is otherwise declared.

See R. v. Snider, 23 C.P. (Ont.), 330.

(2) Nothing in this section contained shall confer upon any person who considers himself aggrieved by a conviction or order made by any Justice, Justices, or Police or Stipendiary Magistrate, the right of appealing to the General Sessions of the Peace, or shall affect procedure on appeals.

2. The Clerk of the Peace for the County shall be the proper officer to whom shall be transmitted convictions to be filed, and recognizances in respect of which proceedings require to be taken at the General Sessions of the Peace.

APPEALS TO GENERAL SESSIONS.

3. Any party who considers himself aggrieved by a conviction or order made by a Justice or Justices of the Peace, or by a Police or Stipendiary Magistrate under the authority of any statute now or hereafter in force in Ontario, and relating to matters within the legislative authority of the Legislature of Ontario, may, unless it is otherwise provided by the particular Act under which the conviction or order is made, appeal therefrom to the General Sessions of the Peace

A statute giving an appeal does not take away the right to a certiorari, and it seems that it would not have this effect, even if it provided that the decision of the Court appealed to should be final.

In the case of a conviction for an offence not being a crime, affirmed in appeal to the Sessions, the writ of certiorari is not taken away by this statute. Re Bates, 40 Q. B. (Ont.), 284; see also ante, p. 146.

Under the Con. Stats. U. C., chap. 114, no appeal lay to the Quarter Sessions, in the case of any conviction for a crime, the Act only applying to a conviction for any matter cognizable by a Justice of the Peace, and not being a crime. Re Lucas, 29 Q. B. (Ont.), 81; Re Meyers, 23 Q. B. (Ont.), 613.

Under this section the right of appeal from convictions or orders is limited to those made under any statute in force in Ontario relating to matters within the legislative authority of the Legislature of Ontario. As to the legislative authority of the Legislature of Ontario, see the British North America Act, 1867, sections 91 & 92; see also R. v. Taylor, 36 Q. B. (Ont.), 183; R. v. Boardman, 30 Q. B. (Ont.), 553.

4. In case an appeal lies to the Court of General Sessions of the Peace from a conviction or order made, as aforesaid, under the authority of a statute of the Legislature of Ontario, or other statute or law now or hereafter in force in the Province of Ontario, and relating to matters within the legislative authority of the said Legislature, the practice and proceedings on the appeal and preliminary thereto, and otherwise in respect thereof, shall be the same as the practice and proceedings under the statutes of the Dominion of Canada then in force, on an appeal to the General Sessions of the peace from a conviction before a Justice of the Peace, made under the authority of a statute of Canada; except that either of the parties to the appeal may call witnesses

and adduce evidence in addition to the witnesses called and evidence adduced at the original hearing.

The notice of appeal and the entry into recognizance, if required by statute as conditions precedent to the right of appeal, must be proved or admitted, whether it is intended to try or only to move to respite the hearing; for, until it is made to appear to the court that the appeal is duly lodged at the proper sessions as well as that due notice has been given and recognizance entered into where so required by the Act applicable to the appeal, jurisdiction to hear or adjourn will not attach. But a respondent may waive proof of appeal or admit it so as to make proof unnecessary.

A mere technical objection to entertaining the appeal will be waived by the respondent asking an adjournment, but an objection of substance as to the jurisdiction of the court cannot be so waived. Re Myers, 23 Q. B. (Ont.), 611. And if notice of appeal has not been given in time or the recognizance entered into or other matter required to be done before the appellant can proceed with his appeal, the objection could probably be taken at any time, for it would shew that the court had no jurisdiction to entertain the appeal. R. v. Crouch, 35 Q. B. (Ont.),"433-9. Where, however, notice of appeal was duly given and admitted by the respondent, and the recognizance also duly entered into and filed with the Clerk of the Peace, but on the appeal coming on for hearing, and after the jury were sworn, the respondent's counsel objected that there was no proof of the recognizance, but afterwards continued the case, and did not renew the objection at the close, it was held that the respondent's counsel had admitted that the necessary recognizance had been entered into. Ib.

Where a rule nisi for a mandamus to the sessions commanding them to hear an appeal, called upon the Court of Quarter Sessions in and for the united counties, &c., instead of the Justices of the Peace for the united counties, and the rule had been enlarged in the prior term, on objection to the rule on the above ground, it was replied that the enlargement waived the objection, and this seem to have been acquiesced in by counsel and by the court. Re Justices, &c., 13 C. P. (Ont.), 159. In fact, it seems that in all cases formal

and technical objections are waived by an enlargement. R. v. Allen, 5 P. R. (Ont.), 453-8.

Under the (Ont.) 32 Vic., chap. 32, s. 36, an appeal from a conviction for selling liquor without license was required to be tried by the Chairman of the Quarter Sesssions without a jury. Re Brown, 6 P. R. (Ont.), 1; 8 C. L. J., N. S., 81.

Under this section the court has a discretion to grant a jury, and if a jury is not demanded by either appellant or respondent the court will proceed to try it. See ante, p. 143–144.

The general principle of appeals is that judgment is to be rendered upon the same facts that were before the inferior tribunal, See R. v. Justices, &c., 5 O. S., 74; s. c., 4 O. S., 340. And such is the law on appeals from convictions under the statutes of Canada. Ante, p. 143. 143. But this section expressly provides for the admission of further evidence.

Under the Con. Stats. U. C., chap. 114, there was no power of adjournment. The appeal was required to be heard at the Court of Quarter Sessions, appealed to, for the Act provided that the court should at such sessions hear and determine the matter of such appeal. Re McCumber, 26 Q. B. (Ont.), 516.

Where, therefore, such court, after proof of entry and notice of the appeal, adjourned the further hearing by order until the next sittings, and then made an order quashing the conviction, the orders were quashed. Ib. So the costs of an appeal from a Justice's conviction as well as the appeal itself had to be determined at the sessions appealed to. R. v. Murray, 27 Q. B. (Ont.), 134.

Under this section, however, there is a power of adjournment, the practice being the same as on appeal to the General Sessions from a conviction before a Justice of the Peace, made under the authority of a statute of Canada. See ante, p. 138-142.

The court will not give costs on adjourning an appeal, unless the objection is made at the time of the adjournment. Re McCumber, 26 Q. B. (Ont.), 516.

It seems doubtful whether under the 32 & 33 Vic., chap. 31, s. 74, an order of sessions, simply ordering costs of an appeal to be paid without directing them to be paid to the Clerk of the Peace

as required by the Act is regular. Re Delaney v. Macnab, 21 C. P. (Ont.), 563; see ante, p. 147.

5. If upon the trial at the General Sessions of the Peace of an appeal from a decision of a Justice of the Peace, upon any matter within the legislative authority of the Legislature of Ontario, it is proved upon the oath or affirmation of any credible witness, that a person whose deposition has been taken upon the original hearing, is dead, or is so ill as not to be able to travel, or is absent from Ontario, or if it is proved in like manner that after diligent inquiry, such person cannot be found to be served with a subpoena, and if it is also proved that such deposition was taken in presence of the person accused, and that he, his counsel or attorney, had a full opportunity of cross-examining the witness, and if the deposition purports to be signed by the Justice by or before whom the same purports to have been taken, it shall be received as evidence in the prosecution without further proof thereof, unless it is proved that the deposition was not in fact signed by the Justice purporting to have signed the same.

See ante, pp. 38-42.

6. Any appellant may abandon his appeal by giving the opposite party notice of his intention in writing six days before the Sessions appealed to; and thereupon the Justice, Justices or Police Magistrate may tax the additional costs, if any, of the respondent, and add the same to the original costs, and proceed on the original conviction, or order, in the same manner as if there had been no appeal thereon.

WHEN AMENDED ACTS OF CANADA TO APPLY.

7. If the Parliament of Canada amends any statute, the operation whereof is extended by virtue of this Act, no such amendment shall have any force in Ontario, by virtue of this Act, until after the termination of the Session of the Legislature of Ontario, held next after the passing of the amending statute.

CHAPTER 75.

An Act respecting the Procedure on Appeals to the Judge of a County Court from Summary Convictions.

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

1. In the construction of this Act

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(1.) “Justice” or Justice of the Peace," shall include two or more Justices of the Peace or a Stipendiary or Police Magistrate ;