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Form of record in case of amendment.

Corporations

Inspection of records of criminal courts.1-Under the ancient law of England, declared by an Act of Parliament, 46 Edw. III., search and exemplification must be made for all persons "of whatever record touches them in any manner, as well that which falls against the king as other persons."

In The King v. Scully (1901), 5 Can. Cr. Cas. 1, and (on appeal) Attorney-General v. Scully (1902), 6 Can. Cr. Cas. 167, the question presented was whether a subject who has been prosecuted for a criminal offence which prior to the Criminal Code was classed as felony, and acquitted, is obliged to procure the fiat of the Attorney-General as a condition to obtaining an exemplification or copy of the record to be used in an action for malicious prosecution as evidence of the favourable termination of the criminal proceedings.

Both the Divisional Court and the Court of Appeal for Ontario held in favour of the subject, that he is entitled as of right to an exemplification or copy, upon payment or tender to the proper officer having custody of the record or the materials from which it may be made up in the form prescribed by sec. 914 of the Criminal Code, of the fee or charges to which he is entitled, and that the ancient statute 46 Edw. III. is in force in Ontario.

The decision in Attorney-General v. Scully (1902), 6 Can. Cr. Cas. 167, in effect overruled the decisions in Regina v. Ivey (1874), 24 U.C.C.P. 78; O'Hara v. Dougherty, 25 Ont. R. 347, and Hewitt v. Cane (1894), 26 Ont. R. 133.

The present sec. 11 of the statute R.S.O. vol. 3, ch. 334 (cited as of 1897, but in fact issued in 1902) came into force on June 2nd, 1902, by proclamation of 29 May, 1902, after the argument of the appeal in Attorney-General v. Scully, and seems to have been intended merely as a reenactment in Ontario of the ancient English statute, 46 Edw. III., above referred to.

A person charged with receiving stolen property knowing the same to have been stolen is a "person affected" by the record of the prosecution and conviction of the parties from whom he is charged to have received the property for the theft thereof, and is entitled to inspection of such record in Ontario under R.S.O. 1897, ch. 324, sec. 11. Where one of the persons so convicted of theft had also been convicted of the theft of other similar property as to which no charge for receiving had been laid against the applicant, and no connection was shewn between that charge and the one for receiving, the applicant is not a "person affected" by the record of the prosecution for the theft of such other property, and is not entitled under said statute to inspection of such record. Re Chantler, 8 Can. Cr. Cas. 245.

915. If it becomes necessary to draw up a formal record, in any case in which an amendment has been made, such record shall be drawn up in the form in which the indictment remained after the amendment, without taking any notice of the fact of such amendment having been made. 55-56 V., c. 29, s. 725.

Proceedings in Case of Corporations.

916. Every corporation against which a bill of indictment may appear is found at any court having criminal jurisdiction shall appear by attorney. by attorney in the court in which such indictment is found and plead or demur thereto. 55-56 V., c. 29, s. 635.

Indictment of corporation.]-An obiter dictum of Sedgewick, J., in Union Colliery v. R. (1900), 4 Can. Cr. Cas. 400, 31 Can. S.C.R. 81, is as follows: "I am strongly inclined to the view that where the Code specifies an offence and provides for the punishment by imprisonment only, it does not necessarily follow that a corporation may not be indicted and fined for the offence so described."

In a Manitoba case it was held that a corporation is not subject to indictment upon a charge of any crime the essence of which is either personal criminal intent or such a degree of negligence as amounts to a wilful incur ring of the risk of causing injury to others, and that sees. 247 and 252, as to want of care in the maintenance of dangerous things, do not extend the criminal responsibility of corporations beyond what it was at common law. There being no power under sec. 920, or otherwise to impose a fine or any other punishment, in lieu of imprisonment, for the offence of manslaughter, it was held that there is consequently no judgment or sentence applicable to a conviction of a corporation for that offence. R. v. Great West Laundry Co. (1900), 3 Can. Cr. Cas. 514 (Man.).

But it has been held in Ontario that a corporation may be indicted under sec. 489 for selling goods to which a false trade description has been applied; and that the proceedings upon such a charge should be instituted by indictment under secs. 916-920, and not by a preliminary inquiry before a magistrate. R. v. T. Eaton Co. (1898), 2 Can. Cr. Cas. 252.

A municipal corporation may be indicted for a nuisance in respect of their non-repair of a highway. Sec. 223; but the consent or order of the judge or the consent of the Attorney-General must first be obtained to the preferring of the indictment. Sec. 873; R. v. City of London (1900), 37 C.L.J. 74.

A justice of the peace cannot compel a corporation to appear before him in respect of an indictable offence, nor can he bind the corporation over to appear and answer to an indictment; and he has no jurisdiction to bind over the prosecutor to present an indictment against the corporation. Re Chapman v. City of London (1890), 19 Ont. R. 33.

As there is no jurisdiction to bind over the prosecutor to prefer a bill of indictment before the grand jury against a corporation, it is necessary that such an indictment should be preferred-(1) by the Attorney-General, or (2) by some one preferring the indictment by the direction of the Attorney-General, (3) or with the written consent of the Attorney-General, (4) or with the written consent of a judge of any court of criminal jurisdiction, or (5) by a person authorized to do so by the court of criminal jurisdiction before which the indictment is sought to be preferred. Sec. 873. It is not necessary that the counsel or order should be stated in the indictment. Section 873. In default of the corporation appearing by attorney the trial may proceed in the absence of the defendant. Section 920. By sec. 871 an objection to an indictment for want of the consent or order required by law in order to prefer an indictment, must be taken by motion to quash the indictment before the accused person is given in charge. By the Interpretation Act, sec. 34, the word "person" includes, unless the context requires otherwise, a body corporate, societies, companies, etc., in relation to such act and things as they are capable of doing and owning respectively. It may be considered as doubtful whether or not a corporation can be properly said to be "given in charge" of the jury, and consequently whether the time limited by sec. 871 applies to indictments of corporations.

Mere acquiescence by a director in prohibited acts of a corporation is not such a participation therein as will constitute him an aider or abettor or make him criminally liable as a party under Code sec. 69 for the illegal acts of the corporation. R. v. Hendrie, 19 Can. Cr. Cas. 298, 11 O.L.R. 202.

Certiorari,

917. No writ of certiorari shall be necessary to remove any not required. such indictment into any superior court with the view of compelling the defendant to plead thereto; nor shall it be necessary to issue any writ of distringas, or other process, to compel the defendant to appear and plead to such indictment. 55-56 V., c. 29, s. 636.

Distringas,

not necessary.

Notice to

918. The prosecutor, when any such indictment is found corporation. against a corporation, or the clerk of the court when such indictment is founded on a presentment of the grand jury, may cause a notice thereof to be served on the mayor or chief officer of such corporation, or upon the clerk or secretary thereof, stating the nature and purport of such indictment, and that, unless such corporation appears and pleads thereto in two days after the service of such notice, a plea of not guilty will be entered thereto for the defendant by the court, and that the trial thereof will be proceeded with in like manner as if the said corporation had appeared and pleaded thereto. 55-56 V., c. 29, 8. 637.

Proceeding on default.

Trial may proceed in absence of defendant.

Notice of a summons by justices under the Summary Convictions clauses of the Code may be given in a manner similar to a notice of indictment under this section. R. v. Toronto Ry. Co. (1898), 2 Can. Cr. Cas. 471.

In the Province of Alberta which has no grand jury system, a corporation may be compelled to answer to an indictable offence (ex gr. conducting a lottery scheme) by a formal written charge in lieu of an indictment, such charge being laid by the Attorney-General or by his direction or with the consent or order of a judge and notice thereof being served on the corporation under sec. 918 of the Code. R. v. Standard Soap Co. (1907), 12 Can. Cr. Cas. 290.

919. If such corporation does not appear in the court in which the indictment has been found, and plead or demur thereto within the time specified in the said notice, the judge presiding at such court may, on proof to him by affidavit of the due service of such notice, order the clerk or proper officer of the court to enter a plea of not guilty on behalf of such corporation, and such plea shall have the same force and effect as if such corporation had appeared by its attorney and pleaded such plea. 55-56 V., c. 29, s. 638.

920. The court may, whether such corporation appears and pleads to the indictment, or a plea of not guilty is entered by order of the court, proceed with the trial of the indictment in the absence of the defendant in the same manner as if the corporation had appeared at the trial and defended the same;

and in case of conviction, may award such judgment and take such other and subsequent proceedings to enforce the same as are applicable to convictions against corporations. 55-56 V., c. 29, s. 639.

Judgment against corporation.]-Section 920 enables a fine to be imposed whether or not the corporation appears.

A fine is the punishment which must be substituted under this section in the case of a corporation charged with causing grievous bodily injury through its failure to maintain a bridge in a safe condition (sec. 284), in lieu of the imprisonment mentioned in sec. 284. and the amount is in the discretion of the court (sec. 1029). R. v. Union Colliery Co. (1900), 3 Can. Cr. Cas. 523 (B.C.), affirmed, 4 Can. Cr. Cas. 400, 31 Can. S.C.R. 81.

A corporation is not subject to indictment upon a charge of any crime the essence of which is either personal criminal intent or such a degree of negligence as amounts to a wilful incurring of the risk of causing injury to others. R. v. Great West Laundry Co. (1900), 3 Can. Cr. Cas. 514.

There is no power under Code sec. 920 or otherwise to impose a fine or any other punishment, in lieu of imprisonment, for the offence of manslaughter, and there is consequently no judgment or sentence applicable to a conviction of a corporation for that offence. Ibid.

Juries.

921. Every person qualified and summoned as a grand or Qualificapetit juror, according to the laws in force for the time being in tion of juror. any province of Canada shall be duly qualified to serve as such juror in criminal cases in that province.

2. Seven grand jurors, instead of twelve, may find a true Seven may bill in any province where the panel of grand jurors is not find bill. more than thirteen. 55-56 V., c. 29, s. 662; 57-58 V., c. 57, s. 1.

Adoption of provincial laws of qualification.]-The provincial law regarding the qualification of jurors made applicable by Code sec. 921 to criminal cases includes a provincial enactment which provides that jurors' lists shall not be open for inspection until six days before the trial sittings. Chantler v. Attorney-General (1904), 9 Can. Cr. Cas. 465 (Ont.).

An accused committed for trial upon a charge of receiving stolen goods is not entitled in Ontario to inspect the petit jury panel for the sessions at which he is to be tried until within six days before the sittings. Ibid. A person of the same or a similar name to that of a qualified juror and who is served in mistake for the qualified juror, but who is not himself upon the list of persons from which alone jurors may properly be summoned, is not a qualified juror under Code sec. 921, and his acting as such is a good ground for ordering a new trial. Such defect in the qualification of a juror goes to the jurisdiction of the tribunal and is not cured by sec. 1010. R. v. McCraw (1906), 12 Can. Cr. Cas. 253 (Que.).

Objection to grand jury.]—See sec. 899.

Number of grand jurors.]—See note to sec. 899.

Jury de medietate

linguæ,

abolished.

Mixed juries in Quebec.

Mixed juries

922. No alien shall be entitled to be tried by a jury de medietate lingua, but shall be tried as if he was a natural born subject. 55-56 V., c. 29, s. 663.

923. In those districts in the province of Quebec in which the sheriff is required by law to return a panel of petit jurors composed, one-half of persons speaking the English language, and one-half of persons speaking the French language, he shall in his return specify separately those jurors whom he returns as speaking the English language, and those whom he returns as speaking the French language respectively; and the names of the jurors so summoned shall be called alternately from such lists. 55-56 V., c. 29, s. 664.

Mixed juries in Quebec.]-A prisoner arraigned for trial in Quebec has the right to claim a jury composed for one-half at least of persons speaking his language if French or English. After having claimed a mixed jury and the recording of the order therefor by the court, the prisoner has no absolute right to relinquish such claim and to have the order for a mixed jury superseded, but revocation may be ordered on such an application in the discretion of the court. R. v. Sheehan (1897), 1 Can. Cr. Cas. 402 (Que.).

The right to a mixed jury in the Province of Quebec, conferred by 2728 Vict., ch. 41, statutes of the Province of Canada, still exists in criminal cases, notwithstanding the statute 46 Vict., ch. 16 (Que.), purporting to repeal the former Act. R. v. Yancey (1899), 2 Can. Cr. Cas. 320. A statute of the former Province of Canada in force at the time of Confederation, which conferred the right to a mixed jury in Lower Canada, now the Province of Quebec, remains in force thereafter as a matter of "criminal procedure" as to that province, and can be varied or repealed only by the Parliament of Canada. B.N.A. Act, sec. 91(27). Ibid. R. v. Sheehan (1897), 1 Can. Cr. Cas. 402 (Que.). The prosecuted party may, upon arraignment, demand a jury composed for the one-half at least of persons skilled in "the language of his defence," whether French or English; but this does not give the accused an option to choose either language as the language of the defence, nor to have at least one-half of the jurors drawn from those skilled in the language in which counsel for the accused proposes to conduct the defence. The "language of the defence" in that connection means the language habitually spoken by the accused. R. v. Yancey (1899), 2 Can. Cr. Cas. 320.

Where six English jurors had been sworn after several jurors had been directed to stand aside at the instance of the Crown and the clerk recommenced to call the panel alternately from the English and the French lists and one of them previously ordered to stand aside was again called, it was held that the previous "stand aside" stood good and did not need to be withdrawn until the panel was exhausted. R. v. Dougall (1874), 18

L.C. Jur. 242.

924. Whenever any person who is arraigned before the in Manitoba. Court of King's Bench for Manitoba demands a jury composed, for the one-half at least, of persons skilled in the language of the defence, if such language is either English or

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