Production of books,

etc., may

be ordered.

Magistrate, (s) and if he refuses to be sworn or to affirm, (t) or to answer any question touching the case, he may be committed to the common gaol of the county, there to remain until he consents to be sworn or to affirm and to answer (u). R. S. O. 1877, c. 181, s. 86.

116. Any person summoned as a party to, or as a witness in any proceeding under this Act, (v) may, by the summons, be required to produce, at the time and place appointed for his attendance, all books and papers, accounts, deeds and other documents in his possession, custody or control, relating to any matter connected with the said proceeding, saving all just exceptions to such production ; (w)

(8) The witness must be summoned in the first instance, and then, if he refuses or neglects to attend upon such summons, a warrant may be issued for the arrest of such person. Upon his being arrested and brought before the Justice, Justices or Magistrate, if he refuses to be sworn or to affirm or to give his evidence, he may be committed to gaol until he consents to do so. A commitment under this provision must follow the words of the Statute in prescribing the term of imprisonment, namely, "until he consents to be sworn or to affirm and to answer: ,, see ex parte Besset, 6 Q. B., 481; in re Anderson, 11 C. P., 1.

As to competency of witnesses under the English Licensing Act, 1872, which makes the defendant and his wife competent to give evidence, see Seager v. White, 51 L. T. N. S., 261, in which it was held that being competent witnesses they are also compellable witnesses, and are on the same footing as other married witnesses; and that where the wife is the licensed person, and is summoned, she as well as her husband may both give evidence. See also Cattell v. Ireson, E., B. & E. 91; Parker v. Green, 2 B. & S., 299; R. v. Hawkhurst, 26 J. P., 772.

See sec. 98 and notes thereto.

(t) "Sworn or affirm." By R. S. O., c. 61, s. 12, 13, Quakers, Menonites, Tunkers, etc., or any person who refuses or is unwilling from alleged conscientious motives to be sworn may make a solemn affirmation or declaration; and by sec. 14 a similar provision is made respecting persons who object or are incompetent to take an oath.

(u) The service of the summons on the witness should be proved before the issue of a warrant, and this may be done by taking the depositions of the constable or other person who effected such service. If the witness is within the Magistrate's jurisdiction he may be arrested and brought before the Magistrate; if he be out of the jurisdiction, the warrant may be backed by a Justice having jurisdiction in the place where the witness is found. See note (m), sec. 101, p. 229.

(v) This section applies to the parties to the prosecution as well as witnesses. Either the prosecutor, defendant, or a witness may be required to produce such books, &c., as there may be in his possession, custody, or control. The summons must be in the form of a duces tecum and require the person to whom it is directed to bring with him and produce at the time and place appointed all books and papers, accounts, deeds and other documents in his possession, custody, or control, relating to any matter connected with the said proceeding. (w) Saving all just exceptions." 'Upon principles of reason and equity,

and shall be liable to the same penalties for non-production of such books, papers or documents, as he would incur by refusal or neglect to attend, pursuant to such summons, or to be sworn or to answer any question touching the case (x). R. S. O. 1877, c. 181, s. 87.

Inspec

to be allowed

as for

tending

18; R.S.C.

117. (1) In any prosecution under this Act, or The tor's exTemperance Act of 1864, or the second part of The Canada penses Temperance Act (y), if the inspector attends the Court prosecutor or witness and travels to attend such Court a court. distance of more than three miles from his place of resi- 27-28 V. C. dence, it shall be lawful for the Justice or Justices trying the case to tax against the defendant, in cases of conviction, as costs in the cause to cover railway fare or hire of conveyance of the inspector in attending the said prosecution as follows (2):

c. 106.

Judges will refuse to compel either a witness or a party to a cause to produce either his title deeds, or any document, the production of which may tend to criminate him, or any document which he holds as mortgagee or pledgee. But a witness will not be allowed to resist a subpoena decus tecum on the ground of any lien he may have on the document called for as evidence, unless the party requiring the production, be himself the person against whom the claim of lien is made. If the witness be a Solicitor, though he will be permitted, he certainly will not be forced, except in some cases for the purpose of identification, to produce any instrument which he holds confidentially for his client, and which his client has a right to keep back; but in this case, as has just been noticed, it by no means necessarily follows that, in the event of the client himself not being summoned, secondary evidence will be admissable:" Taylor on Evi., 419, 420. A witness cannot be excused from producing a document merely because its production may expose him to a civil action, or be otherwise prejudicial to his pecuniary interests. Neither a witness nor a party in the cause is bound to produce documents which may render him liable to punishment, or expose him to penalty or forfeiture, unless they be of a public nature such as the Statute directs to be kept and produced: Ib. 1252.

See R. v. Roddy, 41 U. C. R., 291 and other cases cited in notes to sec. 115. As to privileges in case of official documents, see R. S. O., c. 61, s. 24. (x) The notes to sec. 115 are applicable to the latter part of this section. (y) This section applies to all prosecutions under this Act, The Temperance Act, 1864, and the second part of The Canada Temperance Act, in which the License Inspector is required to attend either as the prosecutor or as a witness.

By sec. 129 the Inspector is required to prosecute on receiving information leading to the suspicion that persons are violating the law, and by sec. 134, it is declared to be his duty to prosecute all offenders. Neglect to do so subjects him to a penalty of $10 for each case of neglect.

(z) In a prosecution under the C. T. Act, it was contended that the Magistrate had no power to order payment of a sum for two days' attendance of the Inspector and his mileage, but the Court did not consider the question as the conviction was quashed on other grounds. Reference was made to this section and to R. S. C. c. 178, secs. 58-61, and R. S. O. c. 78: R. v. Tucker, 16 O. R.,

Railway or stage fare.

Hired

conveyance.

His own conveyance.

Other expenses.

Adjournments.

Expenses verified by oath.

Inspector

to make

1. In case he travels by railway or stage the fares actually required to be paid by him ;

2. If by a hired conveyance, the sums actually required to be paid for a horse, conveyance, and tolls;

3.

4.

If in his own conveyance, ten cents per mile one way;
And to cover all other expenses, $1 per day;

5. In cases of adjournment at the instance of the defendant, similar additional allowances to be made, when the inspector is actually in attendance.

(2) The mileage or other expenses shall be verified by the oath of the inspector.

(3) The inspector shall make quarterly returns in detail quarterly under oath to the department of the Provincial Secretary, of all sums received by him for mileage, and other expenses, in this section provided for. 47 V. c. 34, s. 29.

returns.

Conviction of Justices

final except as

APPEALS.

118. (1) In all cases of prosecution (a) for any offence (b) against any provisions of this Act for which any penalty or punishment is prescribed, (c) a conviction or

127. See also note (w), sec. 100, p. 125, and schedule of fees receivable by Justice of the Peace in appendix. In R. v. Elliott, 12 O. R., 524, at p. 530, Mr. Justice Rose in delivering judgment says: " c. 77, R. S. O."-now c. 78, R. S. 0. (1887)" provides a table of costs which the Justices are authorized to direct payment of, and payment of no other costs can be ordered," and therefore a charge of $1 for the use of the hall in which the case was tried was held to be an excess of the Magistrate's jurisdiction. From these cases it appears that some doubt exists as to the Magistrate's power to award any other costs than those provided for in R. S. O. c. 78.

(a) Under this section as it is now framed, the decision of the Justices or Police Magistrate is final and conclusive in all cases except those in which the offence charged is alleged to be committed by a licensee, or is committed upon or in respect of licensed premises. There is no appeal in cases against unlicensed offenders, unless the offence is alleged to have been committed on or in respect of licensed premises. See R. v. Gordon, cited below.

Formerly an appeal was allowed against a conviction for selling liquors without a license: R. v. Firmin, 33 U. C. R., 523. See R. v. Lake, 7 P. R., 215.

But by 53 Vic. c. 56, s. 14, the right of appeal, except as above, is taken

away.

(b) "Any offence." See note (o), p. 29.

(c) "Penalty or punishment." See sec. 46, note (n).

provided.

order (d) of the said Justices or Police Magistrate, as the otherwise case may be, except as hereinafter mentioned, shall be final and conclusive, and except as hereinafter mentioned, against such conviction or order there shall be no appeal. (e)

ure on

[(2) Subject to the provisions contained in the following Procedsub-sections hereof, an appeal shall lie to the Judge of the appeals. County Court of the County in which the conviction is made, sitting in chambers without a jury in all cases where the person convicted is a licensee, or the conviction is for any offence committed on or with respect to premises licensed under this Act, provided a notice of such appeal is given to the prosecutor or the complainant within five days after the date of the said conviction.] (f) 53 Vic., c. 56, s. 14.

(d) "Conviction or order." See sec. 100, note (v).

(e) When a decision is "final and conclusive," an appeal is taken away : Waterhouse v. Gilbert, 15 Q. B. D., 569; Bryant v. Reading, 17 Q. B. D., 128; Lyon v. Morris, 19 Q. B. D., 139.

Where an appeal is not taken away and the matter is capable of being amended on appeal, a certiorari should not issue: per Gwynne, J., in re Watts and Emery, 5 P. R., 267, at p. 269. See also R. v. Strachan, 20 C. P., 182, at p. 191.

A mandamus to the sessions to try an appeal against a conviction was refused on the ground, amongst others, that the Act constituted the County Judge sitting in Chambers without a jury a Court of Appeal in such cases: R. v. Clarke, 44 U. C. R., 385.

C. P. Division-The Divisional Court. Before Rose, J., MacMahon, J. R. v. Gordon. The defendant appealed from an order of Galt, C. J., in Chambers, refusing to consider the validity of a summary conviction made by the Police Magistrate for the city of Toronto, upon a case stated by the Magistrate under 53 Vic., c. 37, sec. 28 (Ont.), on the ground that the Magistrate had no power to state a case with regard to this particular conviction, which was under the Liquor License Act for selling without a license, and not, as the Chief Justice held, within the provisions of the Summary Convictions Act. Appeal dismissed on the ground that a case cannot be stated with respect to a conviction such as this, which cannot be appealed to the Sessions. No costs (not reported).

It was held that it was irregular for the Judge who tries the case to call a jury, or to receive depositions of witnesses as evidence, but that this is not a ground for prohibition: In re Brown and Wallace, 6 P. R., 1.

(f) This sub-sec. has been substituted by 53 Vic., c. 56, s. 14, for sub-sec. 2 of sec. 118 of R. S. O., c. 194. By it the Judge of the County Court of the County in which the conviction is made, sitting in Chambers without a jury is constituted a Court of Appeal: see R. v. Clarke, 44 U. C. R., 385; in re Brown and Wallace, 6 P. R., 1, cited above.

The "Notice" is a condition precedent to the right to appeal, see R. v. The Justices of Cheshire, 11 A. & E., 139. The notice must comply with the provisions of the Act: ex parte Curtis, 3 Q. B. D., 13. See also R. v. Justices of

Appellant to enter into a recogniz

ance,

(3) The person convicted, in case he is in custody, shall either remain in custody until the hearing of such appeal before the said Judge, or (where the penalty of imprisonment with or without hard labor is adjudged) shall enter into a recognizance with two sufficient sureties, in the sum of $200 each, before the convicting Justices or Police Magistrate, conditioned personally to appear before the said Judge, and to try such appeal and abide his judgment thereupon, and to pay such costs as he may order, and in case the appeal is against a conviction whereby only a and costs. penalty or sum of money is adjudged to be paid, the appellant may (although the order directs imprisonment in default of payment) instead of remaining in custody as aforesaid, give such recognizance as aforesaid, or may deposit, with the said Justices or Police Magistrate convicting, the amount of the penalty and costs, and a further sum of $25 to answer the respondent's cost of appeal. (g)

or deposit amount

of penalty

Bedfordshire, 11 A. & E., 134; R. v. Eaves L. R. 5 Ex., 75; R. v. Goodall, L. R. 9 Q. B., 557; R. v. Justices of Berkshire 4 Q. B. D., 469.

(g) The provisions of this clause apply,

1st, To cases where the defendant is in custody, or is adjudged to undergo the penalty of imprisonment with or without hard labor; and

2nd, To cases where the penalty adjudged is merely a sum of money and imprisonment in default of payment. In the first case the defendant must either remain in custody until the appeal is tried, or enter into a recognizance in the terms of the Act with two sufficient sureties in the sum of $200. In the second case, he may either remain in custody or enter into recognizance as in the first case, or he may deposit with the Magistrate or Justices the amount of the fine and costs and $25 to provide for the respondent's costs of appeal. As to such costs, see sec. 120.

"Conditioned personally." The defendant must appear personally before the Judge. The conditions of the recognizance must comply with all the conditions imposed by the Statute, and where this was not done the appeal was dismissed: Kent v. Olds, 7 L. J., 21. See Jackson v. Kassel, 26 U. C. R., 341. But where in the form of recognizance to try an appeal given in the Schedule to the Statute the condition differed from that provided by the enactment, it was held that the form was sufficient, as the Act giving it would be a snare to entrap persons if it were held that to follow it was to act contrary to the enactment, and so to lose the appeal: per Draper, C. J., re Wilson and the Quarter Sessions of Huron, 23 U. Č. R., 301, and this principle has been followed in numerous cases: see Reid v. McWhinnie, 27 U. C. R., 289; Cornwall v. The Queen, 33 U. C. R., 106; Gemmill v. Garland, 12 O. R., 142; Northcote v. Brunker, 14 App. R., 378.

A recognizance conditioned to appeal to the "General Quarter Sessions or General Sessions" when it should have been to the "Court of General Sessions of the Peace," was held a sufficient compliance with the Statute: R. v. Essery, R. & J. Dig., 3485.