Crown counsel may prefer indictment.

Attorney

bill without requiring the grand jurors to be re-sworn. R. v. Kelly (1905), 9 Can. Cr. Cas. 130 (Que.).

872. The counsel acting on behalf of the Crown at any court of criminal jurisdiction may prefer against any person who has been committed for trial at such court a bill of indictment for the charge on which the accused has been so committed or for any charge founded on the facts or evidence disclosed in the depositions taken before the justice. 63-64 V., c. 46, s. 3.

873. The Attorney General or any one by his direction or General any one with the written consent of a judge of any court of may prefer indictment. criminal jurisdiction or of the Attorney General, may prefer a bill of indictment for any offence before the grand jury of any court specified in such consent.

Any one by order.

Statement of consent.

Not otherwise preferred.

2. Any person may prefer any bill of indictment before any court of criminal jurisdiction by order of such court.

3. It shall not be necessary to state such consent or order in the indictment and an objection to an indictment for want of such consent or order must be taken by motion to quash the indictment before the accused person is given in charge. 4. Except as in this Part previously provided no bill of indictment shall be preferred in any province of Canada. 63-64 V., c. 46, s. 3.

Direction of Attorney-General.]—The preferring of an indictment by an agent of the Attorney-General acting under a general appointment to attend to all criminal cases at a session of the court without having obtained the special direction of the Attorney-General or an order or consent under sec. 873, is not a compliance with the section, and, if the person who was bound over by recognizance to prefer an indictment fails to appear, the indictment should be quashed. R. v. Hamilton (1898), 2 Can. Cr. Cas. 178 (N.S.).

Where the preferring of an indictment is authorized solely upon the ground that a direction of the Attorney-General has been given therefor. the written consent or direction must be one with regard to the particular case, and the offence must be specified therein; and a general direction in writing by the Attorney-General authorizing counsel to take charge of the criminal prosecutions for the Crown at the sittings of the court will not suffice. R. v. Townsend (1896). 3 Can. Cr. Cas. (N.S.).

Habeas Corpus Act.]-The Habeas Corpus Act, 31 Car. II., ch. 2. still applies in Ontario. R. v. Keeler, 7 Ont. Pr. Rep. 124. It was particularly directed to the securing the discharge from imprisonment of persons tried and acquitted, and the avoidance of wilful delays in bringing prisoners to trial. By it the person in custody might apply in open court in the first week of the term, or first day of the session of oyer and terminer and general gaol delivery to be brought to his trial; and if, having made such application, he were not indicted and tried during the second term or sessions of oyer and terminer and general gaol delivery after his commitment, he was entitled to be discharged from his imprisonment. 31 Car. II., ch. 2, sec. 7.

1

The Crown by this is not obliged to do more than indict at the first assize after commitment and have the prisoner tried at the second assize thereafter. R. v. Bowen (1840), 9 C. & P. 509.

Indictment upon judge's consent.]—An indorsement made and signed by the judge upon an indictment by which he "directs" that the indictment be submitted to the grand jury, is a sufficient "consent" of the judge to the preferring of the indictment. R. v. Weir (No. 2), 3 Can. Cr. Cas. 155 (Que.).

It would seem that the consent may be obtained ex parte. R. v. Bray, 3 B. & S. 255.

Where the order or consent of the presiding judge is necessary to vali date the preferring of an indictment, such order or consent must be put in writing before the indictment is brought in, and it cannot be afterwards made nunc pro tunc. R. v. Beckwith (1903), 7 Can. Cr. Cas. 450

(N.S.).

Motion to quash indictment.]—Where the depositions before the magistrate have not been taken according to law, and a material provision of the law has not been complied with, the indictment may be quashed upon motion at any time before the accused is "given in charge" to the jury. R. v. Lepine (1900), 4 Can. Cr. Cas. 145 (Que.). An accused person cannot be said to have been "given in charge" to the jury until the jury are sworn, and his arraignment and the pleading of not guilty to the indictment do not constitute a "giving in charge." Ibid.

An indictment may be valid as being founded on the evidence disclosed on "the depositions taken before the justice," although the preliminary enquiry was held jointly, in respect of the party indicted and of two others separately charged with the same offence, and the depositions were given in respect of all of them in the one proceeding. R. v. Skelton (1898), 4 Can. Cr. Cas. 467 (N.W.T.).

An accused against whom an indictment is preferred, under the authority of a judge's consent under sec. 641, is not entitled to have the indictment quashed by reason of the fact that a preliminary enquiry in regard to the same offence was at the same time pending before a justice of the peace upon which the latter had not given his decision for or against committal for trial. R. v. Weir (No. 2), 3 Can. Cr. Cas. 155 (Que.).

After a true bill had been found on an indictment for libel the defendant moved to have same quashed on the ground that one of the grand jurors was of affinity to him in the seventh degree, this was held not to be a sufficient ground for the application. R. v. Lawson (1881), 2 P.E.I. Rep. 398.

Prior to the adoption of the Criminal Code, it was permissible to lay charges before a grand jury and to ask and obtain indictments without any preliminary commitment or even inquiry. As a previous investigation before a magistrate was not an essential condition, an alleged irregularity in case of such enquiry was not then a fatal objection to an indictment which was in whole or in part a sequel to it and the only remedy of the accused person was then to seek to quash the commitment under a writ of habeas corpus. All that procedure is changed, since the Code, this section of which requiries a previous commitment or the order of the Attorney-General or the consent of a judge as an essential preliminary condition before a charge can be laid before a grand jury, and provides that accused may at any time before he is given in charge to the jury apply to the court to quash any count in the indictment not founded on the facts or evidence disclosed on the depositions taken before the justice. R. v. Lepine (1900), 4 Can. Cr. Cas. 145 (Que.).

The same bill may not be presented to the same grand jury twice (un

Saskatche

wan and Alberta.

less, perhaps, in exceptional circumstances, or where fresh evidence is forthcoming). Bowen-Rowlands Cr. Pr. 53.

In R. v. Simmonite (1843), 1 Cox, 30, a second bill was allowed to be preferred to the grand jury which had ignored the first, but in that case additional evidence had been obtained.

An indictment for obstructing a clergyman in celebrating divine service will not be quashed for failure to allege therein that the clergyman was in lawful charge of the church or place of worship. R. v. Wasyl Kapij, 9 Can. Cr. Cas. 186 (Man.).

Where on a preliminary inquiry before a magistrate the witnesses were sworn by him and were then taken into another room and their evidence in chief taken by a stenographer and not in the presence of the magistrate, such depositions are illegally taken, although the prisoner's counsel had the opportunity of afterwards cross-examining the witnesses before the magistrate. The objection to the irregularity is not waived by the cross-examination of the witnesses on the prisoner's behalf on their return to the magistrate's presence, if the objection is taken by the prisoner's counsel before he proceeds to cross-examine. Both the commitment for trial and the indictment founded on such illegal depositions are invalid and should be set aside. R. v. Traynor (1901), 4 Can. Cr. Cas. 410 (Que.).

Depositions taken before one magistrate cannot be acted upon by another magistrate as sufficient evidence to commit a prisoner, without having seen the demeanour of the witnesses when they were giving their evidence, and so being in a position to judge for himself of the truth of their statements. R. v. Guerin (1888), 16 Cox C.C. 596.

A motion is technically too late if not made "before the accused had been given in charge to the jury," but counsel for the accused may move to withdraw the plea of "not guilty" before submitting the motion to quash, and leave to withdraw is usually given. R. v. Lepine (1900), 4 Can. Cr. Cas. 145 (Que.).

Section 899 of the Code enacts that "any objection to the constitution of the grand jury may be taken by motion to the court, and the indictment shall be quashed if the court is of opinion both that such objection is well founded, and that the prisoner has suffered or may suffer prejudice thereby, but not otherwise."

A bill of indictment found on the testimony of a witness not duly sworn will be quashed. R. v. Bitton, 6 C. & P. 92. But an objection made after conviction that the indictment was found on unsworn testimony is too late. Rex v. Dickinson, Russ. & R. 401.

Joint indictment.]-See note to sec. 858.

873A. (Added 1907). In the provinces of Saskatchewan and Alberta, it shall not be necessary to prefer any bill of indictment before a grand jury, but it shall be sufficient that the trial of any person charged with a criminal offence be commenced by a formal charge in writing setting forth as in an indictment the offence with which he is charged.

2. Such charge may be preferred by the Attorney General or any agent of the Attorney General, or by any person with the written consent of the judge of the court or of the Attorney General, or by order of the court. 6 & 7 E. VII., c. 8.

Attorney-General.]-See sec. 2(16).

Proceedings before the Grand Jury.

874. It shall not be necessary for any person to take an Evidence. oath in open court in order to qualify him to give evidence

foreman.

875. The foreman of the grand jury or any member of the Oath admingrand jury who may, for the time being, act on behalf of the istered by foreman in the examination of witnesses, may administer an oath to every person who appears before such grand jury to give evidence in support of any bill of indictment; and every such person may be sworn and examined upon oath by such grand jury touching the matters in question. 55-56 V., c. 29, s. 644.

Form of oath to witness.]-"The evidence you shall give touching the matters in question shall be the truth, the whole truth, and nothing but the truth. So help you God."

This oath is not administered in open court (sec. 874) but in the grand jury room by the foreman, in the presence of the grand jurors.

endorsed

876. The name of every witness examined, or intended to Names of be examined, shall be endorsed on the bill of indictment; and witnesses the foreman of the grand jury, or any member of the grand on bill. jury so acting for him, shall write his initials against the name of each witness sworn by him and examined touching such bill of indictment. 55-56 V., c. 29, s. 645.

Initialing names of witnesses endorsed on bill of indictment.]—The provision requiring the foreman of the grand jury to initial upon the bill of indictment the names of witnesses sworn has in two Canadian cases been held to be directory only and not imperative, and the court in both cases refused to quash the indictment because of the omission of the foreman in that respect. R. v. Buchanan (1898), 1 Can. Cr. Cas. 442, 112 Man. R. 190; R. v. Townsend (1896), 3 Can. Cr. Cas. 29, 28 N.S.R. 468; R. v. Holmes (1902), 6 Can. Cr. Cas. 402, 9 B.C.R. 294.

The opposite view is taken in the case of The King v. Belanger, 6 Can. Cr. Cas. 295, by the full Court of King's Bench at Montreal, it being there held that the failure to initial the names of the witnesses examined before the grand jury is a good ground for quashing the indictment.

Witnesses before the grand jury.]-The grand jury are quite free to conduct their enquête as they please. Their business is not to try the accused, and they are informed by the judge that they cannot reject any indictment without examining all the witnesses, but they may dispense with the examination from the time that they are satisfied, from the examination of some, or even of a single one of the witnesses, that there exists a sufficient presumption of guilt against the accused to justify them in making a return that the indictment against him is well founded. R. v. Mathurin (1903), 8 Can. Cr. Cas. 1 (Que.).

The grand jury may send for and look at any deposition and act upon it as they think proper. R. v. Bullard, 12 Cox 353; R. v. Gerrans, 13 Cox 158.

Names of

witnesses to

And in a British Columbia Case where the grand jury reported that without the evidence of an absent witness they had no materials to find a bill, Crease, J., held that they were entitled to peruse the depositions without proof that the witness was absent from Canada or was too ill to travel. R. v. Howes (1886), 1 B.C.R. pt. 2, p. 307.

And in R. v. Gerrans (1876), 13 Cox C.C. 158, Denman, J., presiding at the Hampshire Assizes, held, upon an application made on the part of the prosecution to send up the deposition of an absent witness to the grand jury, that the grand jury were entitled to look at and to act upon the deposition if they thought proper, without any preliminary proof that the witness was ill or that the deposition had been regularly taken in conformity with 11-12 Vict. (Imp.) ch. 42, sec. 17.

But in a Quebec Case the opposite view was taken. In Regina v. Carbray (1887), 13 Quebec Law Reports, p. 100, it was held by Sir A. A. Dorion, C.J., presiding at a trial sittings of the Court of Queen's Bench, Crown Side, that affidavits taken before a magistrate on the application for the warrant to apprehend the accused, could not be used as evidence before the grand jury in the absence of the deponents. The Chief Justice stated that the depositions were not admissible, having been taken out of the presence of the person accused, and without his having had an opportunity of cross-examining the deponents. He, therefore, declined to follow the decision in R. v. Bullard, 12 Cox 353.

Secrecy of proceedings of grand juries.]—By a rule of the common law, grand jurors are required to take an oath of secrecy, and it is well settled that the proceedings before the grand jury must be kept strictly secret, and that no information must be given pending their deliberation concerning the matters brought before them. Freeman v. Arkell, 1 C. & P. 135; Greenleaf on Evidence, 16th ed., sec. 252. The rule applies to all persons authorized by law to be present in the grand jury room. 17 Am. & Eng. Encyc., 2nd ed., page 1291.

It has been held that although the presence of a stranger in the jury room is improper, it does not invalidate an indictment found by the grand jury if he does not act as a grand juror, or if the person indicted is not thereby injured in his substantial rights; but if an unauthorized person participates in the proceedings of the grand jury, and instructs the grand jury concerning the law of the case, the indictment will be quashed. 17 American and English Encyclopædia of Law, 2nd ed., page 1292.

The defendant has no right to have a counsel or attorney, or any person skilled in the law, present before the grand jury as an advocate on his be half, it being a preliminary investigation only, and not conclusive on him.

Chitty (1 Crim, Law, page 317), says: "Any person who may be present on the occasion is bound not to disclose what may transpire; and the jurors themselves are, by the terms of their oath, laid under the same obligation; and if they transgress it, they are fineable. Formerly, indeed, they became accessories to the offence if felony, and if treason, principals. And, at this day, it is, in general, a high misprision. But where a witness, examined on the trial, swears directly the reverse of the evidence given before the grand jury, they are at liberty to state this circumstance to the judge, who may direct him to be prosecuted for perjury on the testimony of the grand inquest. And it has been held that the true object of the secrecy required, is to prevent the evidence produced before the grand jury from being counteracted by subornation of perjury on the part of the defendant.

877. The name of every witness intended to be examined on any bill of indictment shall be submitted to the grand jury