2ND EDIT. REVISED STATUTES 1906 REMARKS Sec. 765. Sec. 825. Offences triable under this Part, by consent. Every person committed to gaol for trial on a charge of being guilty of any of the offences which are enumerated in section 582, as being within the jurisdiction of the general or quarter sessions of the peace, may, with his own consent, be tried in any province in Canada, and, if convicted, sentenced by the judge. 2. An entry shall be made of such consent at the time the same is given. 3. Such trial shall be had under and according to the provisions of this Part out of sessions and out of the regular term or sittings of the court, and whether the court before which, but for such consent, the said person would be triable for the offence charged or the grand jury thereof is or is not then in session. 4. A person who has been bound over by a justice or justices under the provisions of section six hundred and ninety-six, and has been surrendered by his sureties, and is in custody on the charge, or who is otherwise in custody awaiting trial on the charge, shall be deemed to be committed for trial within the meaning of this section. (As amended by 6 and Ed. VII, c. 45, sec. 6 (g)). It has been held, in the province of Quebec, that the election of a speedy trial by a person, who, at the preliminary enquiry, was bailed to appear for trial, must take place before a true bill has been found by the Grand Jury and filed of record in the jury court, and that, unless so made, the jury court will have exclusive jurisdiction; that jurisdiction to hold a speedy trial is strictly limited by the terms of the above section, 825, and is only conferred where the accused has been committed to gaol for trial or is otherwise in custody awaiting a trial on the charge against him. (204) It has also been held that, in order to waive trial by jury and to elect to be tried by a Judge having jurisdiction under the Speedy Trials clauses, an information must have been laid before a justice of the peace, a preliminary enquiry must have been had, depositions containing evidence concerning the offence charged (204) R. v. Komiensky, 6 Can. Cr. Cas., 524; Que. Jud. Rep., 12 K. B.. 329. See R. v. Wener, infra. 2ND EDIT. REVISED STATUTES 1906 REMARKS must have been taken, and the accused must have been committed for trial. (205) Sec. 767. PROCEDURE. Sec. 766. Sec. 826. Sheriff to notify judge after committal of accused. Notice to prosecuting officer when judge does not reside in county. Unchanged. Sec. 827. Arraignment. The judge or such prosecuting officer upon having obtained the depositions on which the prisoner was so committed, shall state to him, (a) that he is charged with the offence, describing it; (b) that he has the option to be forthwith tried before a judge without the intervention of a jury, or to remain in custody or under bail, as the court decides, to be tried in the ordinary way by the court having criminal jurisdiction. 2. If the prisoner has been brought before the prosecuting officer, and consents to be tried by the judge, without a jury, such prosecuting officer shall forthwith inform the judge, and the judge shall thereupon fix an early day for the trial and communicate the same to the prosecuting officer. 3. In such case or if the prisoner has been brought before the judge and consents to be tried by him without a jury, the prosecuting officer shall prefer the charge against him for which he has been committed for trial, and if, upon being arraigned upon the charge, the prisoner pleads guilty, the prosecuting officer shall draw up a record as nearly as may be in form 60. 4. Such plea shall be entered on the record, and the judge shall pass the sentence of the law on such prisoner, which shall have the same force and effect as if passed by a court having jurisdiction to try the offence in the ordinary way. Altered, as here set forth. (206) (205) R. v. Wener, Que. Jud. Rep., 12 K. B., 320; 6 Can. Cr. Cas., 406. (206) The new section, 827, is taken from paragraphs 1, 2 and 3 of the old section 767, paragraphs 4 and 5 thereof being made into section 828, infra. 2ND EDIT. REVISED STATUTES 1906 REMARKS An election for speedy trial, under this Part, must be a general one to be tried by a judge having jurisdiction, and is invalid, if restricted to trial only by the judge before whom the arraignment takes place. (207) The waiver by the accused, upon a preliminary enquiry, of the taking of depositions, and his consent to be committed for trial, without any depositions, deprive him of the right of speedy trial, as the charge must, under section 827 be stated to the accused from the depositions on which he was committed. (208) A prisoner, who, after being committed for trial, has elected in favor of a speedy trial, but who breaks gaol before a day for such trial has been fixed, may, on his re-capture, claim the right to a speedy trial for the offence for which he was committed for trial, notwithstanding that the Grand Jury has, in the meantime, found an indictment against him for such offence; but, where, without a preliminary enquiry, an indictment, for the offence of breaking gaol, has been found against the accused, he cannot elect for a speedy trial, without a jury, upon the charge of breaking gaol. (208a) After a committal for trial at the instance of the Crown upon a charge of manslaughter and arraignment thereon under the speedy trials clauses and election of the accused for speedy trial without a jury, the proceedings in the County Court Judge's Criminal Court will not be stayed at the instance of the Crown to enable a charge of murder to be substituted. (209) It has been held, in Nova Scotia, that where an accused has been committed to gaol for trial upon a charge which is within the jurisdiction of a County Court Judge's Criminal Court, under the speedy trials clauses, the jurisdiction of that court, in regard to the charge laid, is not ousted by the fact that a more serious offence, (which that court cannot try), is disclosed by the depositions upon. which the charge was founded. (210) In British Columbia, however, it has since been held that, after a commitment upon a charge of unlawful assault with intent to carnally know, the accused cannot insist upon a trial without a jury, under the Speedy Trials clauses, if the Crown express an intention of indicting him. for an attempt to commit a rape, which latter offence is beyond the (207) R. v. McDougall, 8 Can. Cr. Cas., 234; 24 C. L. T., 324. See R. v. Breckenridge, 7 Can. Cr. Cas., 116. (208) Ib. (208a) R. v. Hebert, 10 Can. Cr. Cas.. 288. (209) R. v. Telford, 8 Can. Cr. Cas., 223. (210) R. v. De Wolfe, 9 Can. Cr. Cas., 38. 2ND EDIT. REVISED STATUTES 1906 REMARKS jurisdiction of a county judge's criminal court and is disclosed on the depositions returned. (211) A charge of theft preferred under the speedy trials clauses of the Code is sufficient, if it states that the defendant "unlawfully did steal," etc., without specifically averring a taking or converting "fraudulently and without color of right and with intent," etc., in the words of section 347, ante. (212) Depositions to which the magistrate had affixed his signature, although such signature was not placed at the foot or end thereof, in accordance with section, 682, ante, are sufficiently signed for the purposes of a "charge brought thereon, under the speedy trials clauses." (213) Sec. 767. Sec. 828. Demand of jury trial; and Re-election. If the prisoner on being brought before the prosecuting officer or before the judge as aforesaid demands a trial by jury, he shall be remanded to gaol. 2. Any prisoner who has elected to be tried by jury may, notwithstanding such election, at any time before such trial has commenced, and whether an indictment has been preferred against him or not, notify the sheriff that he desires to re-elect, and it shall thereupon be the duty of the sheriff and judge or prosecuting officer to proceed as directed by section eight hundred and twenty-six. 3. Thereafter unless the judge, or the prosecuting officer acting under subsection two of section eight hundred and twenty-six, is of opinion that it would not be in the interests of justice that the prisoner should be allowed to make a second election, the prisoner shall be proceeded against as if his said. first election had not been made. (214) Where a defendant, on arraignment before a county court judge, elects speedy trial, he cannot afterwards withdraw such election and obtain a trial by jury. (215) When a new trial has been ordered by the Court of Appeal upon (211) R. v. Preston, 9 Can. Cr. Cas., 201; 11 B. C. R., 159. (212) R. v. George, 5 Can. Cr. Cas., 469; aff., 8 Can. Cr. Cas., 401. (213) R. v. Jodrey. 9 Can. Cr. Cas., 477. (214) This new section, 828, is taken from paragraphs 4 and 5 of the old section 767, paragraphs 1, 2 and 3 thereof being made into section 827, supra. (215) R. v. Keefer, 5 Can. Cr. Cas., 122. 2ND EDIT. REVISED STATUTES 1906 REMARKS an appeal from a trial with a jury, the prisoner is not entitled to re-elect in favor of a speedy trial without a jury. (216) Sec. 768. Sec. 829. Persons jointly accused. Unchanged. Sec. 769. Sec. 830. Re-election after electing under Part XVI or XVII. If under Part XVI. (217) or Part XVII. (218), any person has been asked to elect whether he would be tried by the magistrate or justices, as the case may be, or before a jury, and he has elected to be tried by a jury, and if such election is stated in the warrant of committal for trial, the sheriff, prosecuting officer or judge shall not be required to take the proceedings directed by this Part. 2. If such person, after his said election to be tried by a jury, has been committed for trial he may, at any time before the regular term or sittings of the court at which such trial by jury would take place, notify the sheriff that he desires to re-elect. 3. In such case it shall be the duty of the sheriff to proceed as directed by section eight hundred and twenty-six, and thereafter the person so committed shall be proceeded against as if his said election in the first instance had not been made. Slightly altered. Sec. 770. Sec. 831. Continuance of proceedings before another judge. Unchanged. Sec. 771. Sec. 832. Election after committal under Parts XVI and XVII. Unchanged. (219) Sec. 772. Sec. 833. Trial of accused. If the prisoner upon being arraigned under this Part consents as aforesaid, and pleads not guilty the judge shall appoint an early day or the same day for his trial, and the county attorney or clerk of the peace shall subpoena the witnesses named in the depositions or such of them and such other witnesses as he thinks requisite to (216) R. v. Coote, 7 Can. Cr. Cas., 92. (217) Part XVI relates to the Summary Trial of Indictable Offences. (218) Part XVII relates to the Trial of Juvenile Offenders for Indictable Offences. (219) Except that, instead of a reference being made, (as in section 771 of the old Act), to Parts LV or LVI the reference now is to Parts XVI and XVII. |