lenge for cause before he has made all or any of his peremptory challenges. Whelan v. The Queen (1868), 28 U.C.Q.B. 2. "He had the right to deal with them when and in what manner he pleased, subject only to those necessary and convenient rules for the conduct of business, which the court might have seen fit to adopt." Per Adam Wilson, J., Ibid., p. 50.

If the prisoner whose challenge of a juror for favour has been disallowed, chooses then to challenge the juror peremptorily, he waives the benefit of any exception to the disallowance of his challenge for favour. Stewart v. The State (1853), 13 Arkansas Rep. 720; approved in Whelan v. The Queen, 28 U.C.Q.B., at p. 55; Freeman v. People (1847), 4 Denio, N.Y., 61.

If a defendant omit to challenge a juror on the ground that such juror entertains a hostile feeling against him, he cannot, after a verdict of guilty, ask on that ground to have the verdict quashed and for a new trial. R. v. Harris (1898), 2 Can. Cr. Cas. 75.

When a defendant and one of the impanelled jurors have had an unpremeditated and innocent conversation, which could not bias the juror's opinion nor affect his mind and judgment, although such conversation is improper, it cannot have the effect of avoiding the verdict and constituting ground for a new trial. Ibid.

The ordinary course of proceeding when the prisoner challenges for cause is that the juror is tried for cause at once; but he may be required to stand aside for a time, and the cause be tried at a later stage, if it be more convenient as a matter of practice and procedure that it should be so, or the challenge for cause may be postponed until the peremptory challenges have been exhausted. After challenging for cause and failing to support his challenge, the prisoner may desire to exclude that juror in case he might be influenced against the prisoner by reason of the challenge for cause, and if he had been compelled to exhaust the whole of his peremptory challenges before that, he would then be unable to exclude the juror he had challenged for cause, whom he might have excluded if his peremptory challenges had not been completed. Per Adam Wilson, J., in R. v. Smith (1876), 38 U.C.Q.B. 218.

It is a good ground of challenge of a petit juror that he was on the grand jury by which the indictment was found, the reason being that he may have been one of the twelve who found the indictment and then if he sat on the trial a criminal would be convicted by only twenty-three instead of twenty-four of his peers. R. v. Dowey (1869), 1 P.E.I. 291, per Peters, J.

The right of a prisoner to challenge for cause, though he has not exhausted his peremptory challenges, is fully recognized; but the right of postponing the hearing and trial of that cause is discretionary with the judge. Whelan v. The Queen, 28 U.C.Q.B. 132; R. v. Smith (1876), 38 U.C.Q.B. 218.

The Crown has the right to require the judge to set aside any juror till the panel is perused; and consistently with this the judge may in his discretion for sufficient cause further postpone the time of assigning cause, either for the Crown or the prisoner, but not as a matter of right on a mere request without sufficient cause. Mansell v. R. (1875), 8 E. & B. 54,

111.

Triers.]-Since the Criminal Code came into force, it is no longer necessary that the first juror sworn should be added to the triers appointed to decide on the challenge of the second juror. The King v. Mathurin, Can. Cr. Cas. 1.

Where a juror has been challenged for favour the finding of the triers as to his competency is conclusive, although the accused and his counsel 47-CRIM. CODE.

.

Peremptory

were not then aware of remarks alleged to have been made by the juror which would tend to shew a bias against the prisoner. The King v. Carlin (No. 1), 6 Can. Cr. Cas. 365 (Que.).

The practice before the Code was to select as triers two indifferent persons "not returned of the jury." The Code merely says "two persons present, whom the court may appoint for that purpose" (sec. 931, sub-sec. 8). Triers cannot be challenged (1 Chitty Cr. Law 549), but it still remains the duty of the court to appoint only parties who are indifferent between the prosecution and the accused, and as it is possible that any juror on the panel may be next called and subjected to trial of a challenge for favour, a person on the jury panel should in no case be appointed a "trier."

As soon as two jurors have been sworn the office of the two triers ceases, and those two jurors try the challenges until another juror has been sworn, and afterwards the duty devolves upon the two jurors last sworn from time to time as the selection and challenges proceed. As each new juror is selected he and the one last selected before him become the triers of the next one called.

The trial of the challenge proceeds by witnesses before the triers in open court. The oath to the witnesses other than the juror objected to is as follows:

"The evidence which you shall give to the court and triers upon this inquest shall be the truth, the whole truth and nothing but the truth. So help you God."

The juror objected to may be examined under oath as to the subject matter of the challenge, the oath to be administered to him being as follows:

"You shall true answer make to all such questions as the court shall demand of you. So help you God."

The challenging party first calls his witnesses then the opposite party calls his and the challenging party follows with his witnesses in reply. There seems to be also in strict practice a right of counsel for each party to address the triers before calling his witnesses, but it is not customary for an address to be made.

After the conclusion of the evidence on the challenge, the judge sums up to the triers, and the triers announce their decision, which is final. Roscoe Cr. Ev. 197.

According to the ordinary and grammatical interpretation of the words "if no jurors have then been sworn" it appears that until two jurors have been sworn the triers appointed by the court continue to act, and as it is not directed that they should be joined with the first juror sworn they can and should act alone. R. v. Mathurin (1903), 8 Can. Cr. Cas. 1 (Que.).

In the Quebec Code of civil procedure brought into force on September 1st, 1897, this rule has also been adopted for trial by jury in civil matters. C.C.P. Art. 457.

932. Every one indicted for treason or for any offence challenges by punishable with death is entitled to challenge twenty jurors

accused.

Twelve in certain cases.

peremptorily.

2. Every one indicted for any offence other than treason, or an offence punishable with death, for which he may be sentenced to imprisonment for more than five years, is entitled to challenge twelve jurors peremptorily.

3. Every one indicted for any other offence is entitled to Four in challenge four jurors peremptorily. 55-56 V., c. 29, s. 668.

Peremptory challenges.]-These are made within the limited number here specified without assigning any reason.

A peremptory challenge of a juror when once taken must be counted against the party making it, and cannot be withdrawn when the panel is being called over a second time. R. v. Lalonde (1898), 2 Can. Cr. Cas. 188.

Where several persons are jointly indicted and tried, the Crown is restricted to the number of peremptory challenges allowed on the trial of one person. Ibid.

Where a juryman is taken ill during the trial so that the first jury is discharged, and the same eleven with another returned a second time instanter, the prisoner has a right to challenge any of them as if they had never been previously inserted in the panel. R. v. Edwards, 4 Taunt. 309; 1 Chitty Cr. Law 545.

On an indictment containing two counts one for unlawful wounding and the other for assault, the prisoner is only entitled under sec. 932 to twelve peremptory challenges, being the largest number allowed him on any one count of the indictment. R. v. Turpin (1904), 8 Can. Cr. Cas. 59 (N.S.).

The

Although the charges are cumulative as contained in the various counts, the trial, in the absence of an order for separate trial, is a single one, and by sec. 965 the former practice in regard to juries remains in effect except where expressly altered by or inconsistent with the Criminal Code. number of peremptory challenges still depends on the quality of the most serious of the charges laid in the indictment and not upon the number of offences which are included therein. Ibid.

If a prisoner whose challenge of a juror for favour has been disallowed, chooses then to challenge the juror peremptorily, he waives the benefit of any exception to the disallowance of his challenge for favour. Whelan v. The Queen, 28 U.C.Q.B., at p. 55.

other cases.

933. The Crown shall have power to challenge four jurors By Crown. peremptorily, and may direct any number of jurors not peremptorily challenged by the accused to stand by until all the Standing jurors have been called who are available for the purpose of aside. trying that indictment.

2. The accused may be called upon to declare whether he Accused challenges any jurors peremptorily or otherwise, before the challenges prosecutor is called upon to declare whether he requires such juror to stand by, or challenges him either for cause or peremptorily. 55-56 V., c. 29, s. 668.

first if required.

stand aside

934. The right of the Crown to cause any juror to stand No right in aside until the panel has been gone through shall not be exerlibel to cised on the trial of any indictment or information by a private by the prosecutor for the publication of a defamatory libel. 55-56 V., Crown. c. 29, s. 669.

Standing jurors aside in libel cases.]-The words of this section include ali cases of defamatory libels upon individuals as distinguished from sedi

Challenges

for cause.

No other

ground.

Challenge

in writing.

Form.
Denial.

Peremptory

tious or blasphemous libels; and in all cases of indictment for defamatory libels within the statute, the right of the Crown which previously existed to cause jurors to stand aside is taken away. R. v. Patteson (1875), 36 U.C.Q.B. 129.

Compare Code sec. 1045 as to costs in libel cases. The latter section also contains the phrase "indictment or information by a private prosecutor for the publication of a defamatory libel." The words referring to the indictment and prosecutor being identical in the two sections they ought to have the same application. R. v. Patteson (1875), 36 U.C.Q.B. 129, 155.

The "private prosecutor," as the term is here used, means the person who puts the criminal law in motion; and if there is a criminal proceeding to which the term private prosecutor is more applicable than another, it is in the case of a defamatory libel-a prosecution, as said by Lord Campbell, uniformly instituted by the party injured. Per Morrison, J., in R. v. Patteson (1875), 36 U.C.Q.B. 129, at p. 141.

The fact that the Attorney-General or his representative conducts the prosecution in respect of a private defamatory libel does not make it a public proceeding or withdraw it from the operation of this section. R. v. Patteson (1875), 36 U.C.Q.B. 129, 143; R. v. Marsden (1829), 1 M. & M. 439; R. v. Bell, 1 M. & M. 440.

935. Every prosecutor and every accused person is entitled to any number of challenges on the ground,

(a) that any juror's name does not appear in the panel: Provided that no misnomer or misdescription shall be a ground of challenge if it appears to the court that the description given in the panel sufficiently designates the person referred to; or,

(b) that any juror is not indifferent between the King and the accused; or,

(c) that any juror has been convicted of any offence for which he was sentenced to death or to any term of imprisonment with hard labour or exceeding twelve months; or,

(d) that any juror is an alien.

2. No other ground of challenge for cause than those mentioned in this section shall be allowed. 55-56 V., c. 29, s. 668.

936. If a challenge on any of the grounds aforesaid is made, the court may, in its discretion, require the 'party challenging to put his challenge in writing.

2. The challenge may be in form 70, or to the like effect. 3. The other party may deny that the ground of challenge is true. 55-56 V., c. 29, s. 668.

937. Whenever a person accused of an offence for which he challenge in would be entitled to twenty or twelve peremptory challenges as hereinbefore provided, elects to be tried by a jury composed

one-half of persons skilled in the language of the defence, under case of mixed sections nine hundred and twenty-three or nine hundred and jury. twenty-four, the number of peremptory challenges to which he is entitled shall be divided, so that he shall only have the right to challenge one-half of such number from among the English speaking jurors, and one-half from among the French speaking jurors. 55-56 V., c. 29, s. 670.

See secs. 923 and 924.

938. If several accused persons are jointly indicted and it Accused peris proposed to try them together, they or any of them may or severing sons joining either join in their challenges, in which case the persons who so in their join shall have only as many challenges as a single person would challenges. be entitled to, or each may make his challenges in the same manner as if he were intended to be tried alone. 55-56 V., c. 29, s. 671.

Peremptory challenges on joint indictment.]—Under these provisions cach defendant has a right to the full number of his peremptory challenges; but a corresponding privilege is not given to the Crown, and therefore the Crown is restricted, in the case of the trial of several defendants jointly, to the number of peremptory challenges allowed to it in the case of the indictment of a single person. But if the joint defendants refuse to join in their challenges, the Crown has the right to try them separately, and then the Crown has its four peremptory challenges at the trial of each defendant. R. v. Lalonde (1898), 2 Can. Cr. Cas. 188 (Que.).

939. Whenever after the proceedings herein before provided Panel exfor the panel has been exhausted, and a complete jury cannot be hausted, further jurors had by reason thereof, then, upon request made on behalf of the summoned. Crown, the court may order the sheriff or other proper officer forthwith to summon such number of persons, whether qualified jurors or not, as the court deems necessary and directs in order to make a full jury; and such jurors may, if necessary, be summoned by word of mouth.

added to

the panel.

2. The names of the persons so summoned shall be added to Names the general panel, for the purposes of the trial, and the same proceedings shall be taken as to calling and challenging such persons and as to directing them to stand by as are hereinbefore provided for with respect to the persons named in the original panel. 55-56 V., c. 29, s. 672.

Arraignment and Trial.

940. No one shall be tried upon any coroner's inquisition. Coroner's 55-56 V., c. 29, s. 642.

inquisition.