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ing their deliberations, the court may exclude such person, and direct the grand jury to retire to reconsider the bill, without requiring the grand jurors to be re-sworn. (36)

A prosecutor bound over at his own request to prefer an indictment, after the discharge of the accused on a preliminary enquiry, is only permitted to appear by counsel before the grand jury when the practice of the court so authorizes; and the practice, in the district of Montreal, requires a formal application to the court for permission; and the accused may apply for security for costs, under section 698, ante, at the time of the prosecutor's application for leave to go before the grand jury. (37) Sec. 647. Sec. 878. Fees for swearing witnesses. Unchanged. Sec. 649. Removal of prisoners in case of unfitness, etc., of gaol.

Omitted.

This old section, 641, is transferred to the Prisons and Reformatories Act, (R. S., 1906, c. 148), and made into sections 4 and 5 of that Act.

PROCEEDINGS WHEN PERSON INDICTED IS AT LARGE.

Sec. 648. Sec. 879. Bench Warrant.

When any one against whom an indictment has been duly preferred and has been found, and who is then at large, does not appear to plead to such indictment, whether he is under recognizances to appear or not, the court before which the accused ought to have been tried may issue a warrant for his apprehension, which may be executed in any part of Canada.

2. The officer of the court at which said indictment is found, or, if the place of trial has been changed, the officer of the court before which the trial is to take place, shall, at any time after the time at which the accused ought to have appeared and pleaded, grant to the prosecutor, upon application made on his behalf and upon payment of twenty cents, a certificate of such indictment having been found which may be in form 65, or to the like effect. (38)

(36) Ib.

(37) R. v. Hoo Yoke, 10 Can. Cr. Cas., 211; Que. Jud. Rep.. 14 K. B., 540.

(38) The old section, 648, is divided into these 4 different sections, 879-882.

Sec. 880. Warrant by justice on certificate of indictment being found. Upon production of such certificate to any justice for the county or place in which the indictment was found, or in which the accused is or resides or is suspected to be or reside, such justice shall issue his warrant to apprehend him, and to cause him to be brought before such justice, or before any other justice for the same county or place, to be dealt with according to law. 2. The warrant may be in the form 66, or to the like effect. (38)

Sec. 881. Committal of accused or admission to bail.— If it is proved upon oath before such justice that any one apprehended and brought before him on such warrant is the person charged and named in such indictment, such justice shall, without further inquiry or examination, either commit him to prison by a warrant which may be in form 67, or to the like effect, or admit him to bail as provided in other cases: Provided that if it appears that the accused has without reasonable excuse broken his recognizance to appear he shall not in any case be bailable as of right. (38) Sec. 882. Warrant when accused is in gaol for some other offence. If it is proved before the justice upon oath that any such accused person is at the time of such application and production of the said certificate as aforesaid. confined in any prison for any other offence than that charged in the said indictment, such justice shall issue his warrant directed to the warden or gaoler of the prison in which such person is then confined as aforesaid, commanding him to detain him in his custody until by lawful authority he is removed therefrom.

2. Such warrant may be in form 68, or to the like effect. (38)

(38) The old section, 648, is divided into these 4 different sections, 879-882.

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Sec. 650.

PLACE OF TRIAL.

Sec. 883. Order for removal of prisoner to place of
trial. If after removal by the Governor
in Council or the lieutenant governor in
council of any province of any person con-
fined in any gaol to any other place for safe
keeping or to any other gaol, a true bill for
any indictable offence is returned by any
grand jury of the county or district from
which any such person is removed against
any such person, the court into which such
true bill is returned may make an order for
the removal of such person from the place
for safe keeping or gaol in which he is then
confined to the gaol of the county or district
in which such court is sitting for the purpose
of his being tried in such county or district.
Slightly altered, as here set forth.

Sec. 651. Sec. 884. Change of venue. (39)
Sec. 885. Transmission of record. (39)
Sec. 886. Order sufficient authority for removal of
prisoner. (39)

Sec.

66

Sec.

Sec.

Sec. 640.

Sec. 887. Order in Quebec for changing place of trial. (39)

Nothing in this

Sec. 888. Offence committed entirely in one province
not triable in another.
Act authorizes any court in one province of
Canada to try any person for any offence
committed entirely in another province:
Provided that every proprietor, publisher, ed-
itor or other person charged with the publica-
tion in a newspaper of any defamatory libel,
shall be dealt with, indicted, tried and pun-
ished in the province in which he resides, or
in which such newspaper is printed. (40)

AMENDMENTS.

Sec. 723. Sec. 889. In case of variance, etc. If on the trial of any indictment there appears to be a

variance between the evidence given and the

(39) These four new sections, 884-887, are formed from the old section 651, without any material alterations.

(40) Taken from the latter portion of paragraph 1 and from paragraph 2 of the old section 640, the first part of par. 1 of the old section being made into section 577, ante.

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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 fifty-nine, 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 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.

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. (41)

If

Sec. 723. Sec. 890. Adjournment, if accused prejudiced. the court is of the opinion that the accused has been misled or prejudiced in his defence by any such variance, error, omission or defective statement, but that the effect of such misleading 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 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

(41) The old sec. 723 is made into these two new sections 889 and 890.

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Sec. 724.

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. (41)

Sec. 891. Amendment to be endorsed on record. 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. Slightly altered, as here set forth. . The words "not being his wife" in section 301, ante, providing for the offence of defiling children under fourteen, is an exception, the failure to negative which in the indictment will not invalidate a conviction thereon where no objection was taken before pleading. Had the objection been taken by the prisoner, before plea, by a demurrer or a motion to quash, the Court might have amended the indictment. (42)

Sec. 612. Sec. 892. Application to amend or divide counts.

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 any 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,

(42) R. v. Wright, 11 Can. Cr. Cas., 221; 39 N. S. R.. 103.