In case of variance.

Where in

dictment under wrong Act or con

tive state

ment.

Amendments.

889. If on the trial of any indictment there appears to be a variance between the evidence given and the charge in any count in the indictment, either as found or as amended, or as it would have been if amended in conformity with any particular furnished as provided in section eight hundred and fiftynine, the court before which the case is tried may, if of opinion that the accused has not been misled or prejudiced in his defence by such variance, amend the indictment or any count in it or any such particular so as to make it conformable with the proof.

2. If it appears that the indictment has been preferred under some other Act of Parliament instead of under this Act, or under this instead of under some other Act, or that there is in the tains defec- indictment, or in any count in it, an omission to state or a defective statement of anything requisite to constitute the offence, or an omission to negative any exception which ought to have been negatived, but that the matter omitted is proved by the evidence, the court before which the trial takes place, if of opinion that the accused has not been misled or prejudiced in his defence by such error or omission, shall amend the indictment or count as may be necessary.

Trial proceeds.

3. The trial in either of these cases may then proceed in all respects as if the indictment or count had been originally framed as amended. 55-56 V., c. 29, s. 723.

Amendment of indictment on account of variance.]-The court may, at the trial, amend an indictment if the amendment does not change the character or nature of the charge, and if the accused cannot be prejudiced by the change either as regards the evidence applicable or the defence raised. If the amendment asked would substitute a different transaction from that first alleged, or would render a different plea necessary, it ought not to be made. R. v. Weir (No. 3), 3 Can. Cr. Cas. 262 (Que.).

But, on an indictment for perjury alleged to have been committed on a trial for burning a barn, an amendment was allowed to charge that such trial was for firing a stack. R. v. Neville (1852), 6 Cox C.C. 69.

Where the ownership of stolen property is wrongly stated an amendment may be allowed. R. v. Vincent (1852), 2 Den. 464; R. v. Marks (1866), 10 Cox C.C. 367. And on a charge of theft of money the amount thereof may be amended to conform with the evidence. R. v. Gumble (1872), L.R. 2 C.C.R. 1.

When the false pretence in a charge of obtaining money under false pretences was erroneously laid in the indictment as being that there was in store "a large quantity of beans, to wit, 2,680 bushels of beans," instead of that there were in store "2,680 bushels of beans," as appeared from the depositions taken on the preliminary inquiry, the trial judge may allow an amendment of the indictment to conform with the proof. Although upon the indictment in its original form the charge would be merely upon a false

pretence that there was in store "a large quantity of beans," and the number of bushels would not be required to be proved, the variance by reason of the amendment is not such as would mislead or prejudice the accused in his defence. R. v. Patterson (1895), 2 Can. Cr. Cas. 339 (Ont.). A person may be described either by his real name or by that by which he is usually known. R. v. Norton (1823), R. & R. 510; R. v. Williams (1836), 7 C. & P. 298.

If there be several different species of goods enumerated on a charge of theft and the prosecutor prove theft of any one or more it will be sufficient, although he fails in his proof of the rest, except in a case where value is essential to constitute the offence and the value is ascribed to all the articles collectively but not separately, in which case an amendment would seem to be essential. R. v. Forsyth (1814), R. & R. 274.

The day and year on which the acts charged are alleged to have occurred are not, in general, material to an indictment. Archbold Cr. Pl. (1900) 272. But when the precise date of any fact is necessary to ascertain and determine with precision the offence charged, or the matter alleged in excuse or justification, any variance between it and the evidence will be fatal unless amended. Ibid.

In a charge of burglary, the offence must be proved to have been committed in the night time, although it may be proved to have been committed on any other day previous to the preferring of the indictment. R. v. Brown (1828), M. & M. 315.

Where the place at which the offence is alleged to have been committed is stated as matter of local description and not as venue merely, an amendment should be made if there is a variance between the description in the indictment and the evidence. 3 Russ. Cr. 6th ed., 436. So on a charge of burglary, a variance between the indictment and evidence in the name of the place where the house is situate or in any other description given of it may be fatal unless amended. R. v. St. John (1839), 9 C. & P. 40; 1 Taylor Evid., 9th ed., 209.

The amendment must be made before verdict; R. v. Frost (1855), Dears, 474; R. v. Larkin (1854), Dears. 365; but it is doubtful whether it can be made after the prisoner's counsel has addressed the jury; R. v. Rymes (1853), 3 C. & K. 326; but see R. v. Fullarton (1853), 6 Cox C.C. 194.

On a speedy trial before a county judge, the judge shall have all the powers of amendment which are possessed by any court before which an indictment may be tried under the Code. Section 839.

But Code sec. 889 applies to authorize an amendment as to time or place in a speedy trial charge without re-election, only where the act or transaction which forms the foundation of the charge is the same, and a mistake was made in the evidence or charge as to the true date of the Occurrence. The King v. Lacelle, 10 Can. Cr. Cas. 229.

Reserved case as to propriety of amendment.]-See sec. 890 (3).

Amendment to cure formal defects.]-See sec. 898.

890. If the court is of the opinion that the accused has been Adjournmisled or prejudiced in his defence by any such variance, error, ment if omission or defective statement, but that the effect of such mis- accused prejudiced. leading or prejudice might be removed by adjourning or postponing the trial, the court may in its discretion make the amendment and adjourn the trial to a future day in the same

45-CRIM. CODE.

How determined.

Question for the court.

Amendment to be endorsed on the record.

Application
to amend
or divide
counts.

Order for amendment or division.

Amendment

at the trial when pro

sittings, or discharge the jury and postpone the trial to the next sittings of the court, on such terms as it thinks just.

2. In determining whether the accused has been misled or prejudiced in his defence the court which has to determine the question shall consider the contents of the depositions, as well as the other circumstances of the case.

3. The propriety of making or refusing to make any such amendment shall be deemed a question for the court, and the decision of the court upon it may be reserved for the Court of Appeal, or may be brought before the Court of Appeal by appeal like any other question of law. 55-56 V., c. 29, s. 723.

891. In case an order for amendment as provided for in the two last preceding sections is made it shall be endorsed on the record; and all other rolls and proceedings connected therewith shall be amended accordingly by the proper officer and filed with the indictment, among the proper records of the court. 55-56 V., c. 29, s. 724.

892. The accused may at any stage of the trial apply to the court to amend or divide any count of an indictment which charges in the alternative different matters, acts or omissions, stated in the alternative in the enactment describing the offence or declaring the matters, acts or omissions charged to be an indictable offence, or which is double or multifarious on the ground that it is so framed as to embarrass him in his defence. 2. The court, if it is satisfied that the ends of justice require it, may order such count to be amended or divided into two or more counts; and on such order being made such count shall be so divided or amended and thereupon a formal commencement may be inserted before each of the counts into which it is divided. 55-56 V., c. 29, s. 612.

any

893. Upon a prosecution for any offence under section three hundred and seventy-eight or four hundred and twentyfour, any variance when the property is laid in a person or wrongly laid. corporation, between the statement in the indictment and the evidence adduced, may be amended at the trial.

perty

No owner

proved.

Right of accused to

2. If no owner is proved, the indictment may be amended by laying the property in His Majesty. 55-56 V., c. 29, s. 621.

Inspection and Copies of Documents.

894. Every accused person shall be entitled at the time of his trial to inspect, without fee or reward, all depositions, or

copies thereof, taken against him and returned into the court inspect before which such trial is had, and to have the indictment on depositions which he is to be tried read over to him if he so requires. 55-56 indictment V., c. 29, s. 653.

Arraignment.]-The arraignment of prisoners against whom true bills for indictable offences have been found by the grand jury consists of three parts: first, calling the prisoner to the bar by name; secondly, reading the indictment to him; and thirdly, asking him whether he is guilty or not of the offence charged. As soon as the indictment has been read over to the prisoner, the clerk of the arraigns or officer of the court demands of him: "How say you, are you guilty or not guilty?"

If the prisoner pleads guilty, and it appears to the satisfaction of the judge that he rightly comprehends the effect of his plea, his confession is recorded and sentence is forthwith passed, or he is removed from the bar to be again brought up for judgment. Archbold's Crim. Pleadings, 20th ed., 159. If the prisoner pleads "not guilty," his plea is recorded by the officer of the court, and the prisoner is said to have "put himself upon the country." If the accused wilfully refuses to plead or will not answer directly, the court may order the proper officer to enter a plea of not guilty. Section 900 (2).

and have

read.

895. Every person indicted for any offence shall, before Copy of being arraigned on the indictment, be entitled to a copy thereof indictment. on paying the clerk five cents per folio of one hundred words for the same, if the court is of opinion that the same can be made without delay to the trial, but not otherwise. 55-56 V., c. 29, s. 654.

Indictment only when found.]—An indictment is not an indictment till it be found; it is only a writing prepared for the use of the jury, and for expedition. It is nothing till it is found, for the jury make it an indictment by finding it; they may alter what they please or refuse it absolutely. Per Holt, C.L.J. in Rockwood's Case, 13 Howell St. Tr. 139.

If a true bill has been found by the grand jury, that fact will have great weight in the question of admitting to bail, but it is not conclusive as to the prisoner's right to bail; and if upon reading the depositions against him, they are found to create but a very slight suspicion of the prisoner's guilt, he should be admitted to bail, notwithstanding the refusal of the Crown officers to consent. Ex parte Maguire (1857), 7 L.C.R. 57.

Although no action will lie for maliciously and without reasonable and probable cause bringing a civil action, an action will lie where the procedure is criminal in form, though the charge be bad in law. Powell v. Hiltgen, 5 Terr. L.R. 16.

896. Every person indicted shall be entitled to a copy of the Copy of depositions returned into court on payment of five cents per depositions. folio of one hundred words for the same.

2. If a copy is not demanded before the opening of the When no assizes, term, sittings or sessions, the person indicted shall be delay caused. entitled to such copy if the court is of opinion that the same can be made without delay to the trial, but not otherwise,

Trial postponed.

Documents delivered in case of treason, etc.

Details.

Witnesses to delivery. Exception.

Objections before plea.

Amendments.

No motion in arrest of judgment.

3. The court may, if it sees fit, postpone the trial on account of such copy of the depositions not having been previously had by the person charged. 55-56 V., c. 29, s. 655.

Certified copy of evidence.]-A court stenographer is a public official against whom a mandamus may issue for non-performance of his official duty to furnish an applicant with a copy of evidence. R. v. Campbell, 10 Can. Cr. Cas. 326.

897. When any one is indicted for treason, or for being accessory after the fact to treason, there shall be delivered to him after the indictment has been found, and at least ten days before his arraignment,

(a) a copy of the indictment;

(b) a list of the witnesses to be produced on the trial to prove the indictment; and,

(c) a copy of the panel of the jurors who are to try him returned by the sheriff.

2. The list of the witnesses and the copy of the panel of the jurors must mention the names, occupations, and places of abode of the said witnesses and jurors.

3. The documents aforesaid must all be given to the accused at the same time and in the presence of two witnesses.

4. This section shall not apply to cases of treason by killing His Majesty, or to cases where the overt act alleged is any attempt to injure his person in any manner whatever, or to the offence of being accessory after the fact to any such treason. 55-56 V., c. 29, s. 658.

Objections, Pleas and Record.

898. Every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer, or motion to quash the indictment, before the defendant has pleaded, and not afterwards, except by leave of the court or judge before whom the trial takes place, and every court before which any such objection is taken may, if it is thought necessary, cause the indictment to be forthwith amended in such particular, by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared. 2. No motion in arrest of judgment shall be allowed for any defect in the indictment which might have been taken advantage of by demurrer, or amended under the authority of this Act. 55-56 V., c. 29, s. 629.