at the taking thereof, and, if the deposition relates to any indictable offence for which any accused person is already committed or bailed to appear for trial, shall transmit the same, with the said addition, to the proper officer of the court at which such accused person is to be tried; and in every other case he shall transmit the same to the clerk of the peace of the county, division or city in which he has taken the same, or to such other officer as has charge of the records and proceedings of a superior court of criminal jurisdiction in such county, division or city, and such clerk of the peace or other officer shall proserve the same and file it of record, and upon order of the court or of a judge transmit the same to the proper officer of the court where the same shall be required to be used as evidence. (Code, Art. 681.) Presence of Prisoner at such Examination.— Whenever a prisoner in actual custody is served with, or receives, notice of an intention to take the statement mentioned in the last preceding section, the judge who has appointed the commissioner may, by an order in writing, direct the officer or other person having the custody of the prisoner to convey him to the place mentioned in the said notice for the purpose of being present at the taking of the statement; and such officer or other person shall convey the prisoner accordingly, and the expenses of such conveyance shall be paid out of the funds applicable to the other expenses of the prison from which the prisoner has been conveyed. (Code, Art. 682.) Reading Deposition of a Sick Witness at the Trial.—If the evidence of a sick person has been taken under commission, as provided in the above section, 681, and upon the trial of any offender for any offence to which the same relates, the person who made the statement is proved to be dead, or if it is proved that there is no reasonable probability that such person will ever be able to attend at the trial to give evidence, such statement may, upon the production of the judge's order appointing such commissioner, be read in evidence, either for or against the accused, without further proof thereof,-if the same purports to be signed by the commissioner by or before whom it purports to have been taken, and if it is proved to the satisfaction of the court that reasonable notice of the intention to take such statement was served upon the person (whether prosecutor or accused) against whom it is proposed to be read in evidence, and that such person or his counsel or solicitor had, or might have had, if he had chosen to be present, full opportunity of cross-examining the person who made the same. (Code, Art. 686) In view of the proviso at the end of this Article, 686, no statement professedly taken under the provisions thereof and under the provisions of Article 681, can be available as such at the trial, unless, before taking it, notice has been given of the intention to take it: (1) and such notice must be in writing; otherwise the statement cannot at the trial be read against the prisoner, although he may have been present when it was taken and have had a full opportunity of cross-examination. (2) Taking Evidence, Under Commission, of Witnesses out of Canada.-Whenever it is made to appear, at the instance of the crown, or of the prisoner or defendant, to the satisfaction of the judge of any superior court, or the judge of a county court having criminal jurisdiction, that any person who resides out of Canada is able to give material information relating to any indictable offence for which a prosecution is pending, or relating to any person accused of such offence, such judge may, by order under his hand, appoint a commissioner or commissioners to take the evidence, upon oath, of such person Until otherwise provided by rules of court, the practice and procedure in connection with the appointment of commissioners under this section, the taking of depositions by such commissioners, and the certifying and return thereof, and the use of such depositions as evidence at the trial shall be as nearly as practicable the same as those which prevail in the respective courts in connection with the like matters in civil causes. (Code, Art. 683.) 585.—Commitment of a Witness Refusing to be Examined.—Whenever any person appearing, either in obedience to a summons or subpoena, or by virtue of a warrant, or (1) R. v. Quigley, L. T., N. S. 211, Mellor & Lush, JJ. being present and being verbally required by the justice to give evidence, refuses to be sworn, or having been sworn, refuses to answer such questions as are put to him, or refuses or neglects to produce any documents which he is required to produce, or refuses to sign his depositions, without in any such case offering any just excuse for such refusal, such justice may adjourn the proceedings for any period not exceeding eight clear days and may in the meantime by warrant in FORM O in SCHEDULE ONE of the Code, (1) or to the like effect, commit the person, so refusing, to gaol, unless he sooner consents to do what is required of him. If such person, upon being brought up, upon such adjourned hearing, again refuses to do what is so required of him, the justice, if he sees fit, may again adjourn the proceedings, and commit him for the like period, and so again from time to time until such person consents to do what is required of him. 2. Nothing in this section shall prevent such justice from sending any such case for trial, or otherwise disposing of the same in the meantime, according to any other sufficient evidence taken by him. 586.-Discretionary Powers of the Justice at the Preliminary Examination.—A justice holding the preliminary inquiry may, in his discretion: (a.) permit or refuse permissson to the prosecutor, his counsel or attorney to address him in support of the charge, either by way of opening or summing up the case, or by way of reply upon any evidence which may be produced by the person accused; (b.) receive further evidence on the part of the prosecutor after hearing any evidence given on behalf of the accused; (c.) adjourn the hearing of the matter, from time to time, and change the place of hearing, if, from the absence of witnesses, the inability of a witness who is ill to attend at the place where the justice usually sits, or from any other reasonable cause, it appears desirable to do so, and may remand the accused, if required, by warrant in the FORM P in SCHEDULE ONE of the Code: (2) Provided that no such remand shall be for more than eight clear days, the (1) For Form O., see p. 233, post. (2) For Form P, see p. 234, post. day following that on which the remand is made being counted as the first day; and further provided, that if the remand is for a time not exceeding three clear days, the justice may verbally order the constable or other person in whose custody the accused then is, or any other constable or person named by the justice in that behalf, to keep the accused person in his custody and to bring him before the same or such other justice as shall be there acting at the time appointed for continuing the examination; (d.) order that no person, other than the prosecutor and accused, their counsel and solicitor, shall have access to or remain in the room or building in which the inquiry is held, (which shall not be an open court), if it appears to him that the ends of justice will be best answered by so doing ; (e.) regulate the course of the inquiry in any way which may appear to him desirable, and which is not inconsistent with the provisions of the Code. It will be seen by this article (par. d) that the justice's power to exclude persons from the place of holding the preliminary enquiry does not extend to the counsel or solicitor of either of the parties ; and that. here, as well as in Article 590, post, there is a distinct recognition of the defendant's right to be represented, at the preliminary enquiry, by his counsel or solicitor. Accused Persons Under Sixteen to be kept separate.-Young persons apparently under the age of sixteen who are: (a) arrested upon any warrant, or (b) committed to custody at any stage of a preliminary enquiry into a charge for an indictable offence, or (c) committed to custody at any stage of a trial, either for an indictable offence or for an offence punishable on summary con viction, or (d) committed to custody after such trial. but before imprison ment under sentence.— SHALL be kept in custody separate from older persons charged with criminal offences and separate from all persons undergoing sentences of imprisonment, and SHALL NOT be confined in the lockups or police stations with older persons charged with criminal offences, nor with ordinary criminals. (1) Article 550 of the Criminal Code, as originally passed. directed the trial of persons apparently under sixteen years of age to take place without publicity, and separately and apart from that of other accused persons, so far as it should appear expedient and practirable. But this article has, at the last session of Parliament, been reframed. by striking out the words above italicized, and thus making it IMPERATIVE that the trials of all young persons, apparently under the age of sixteen years, SHALL take place without publicity, and separately and apart from the trials of other accused persons. (2) 587.-Bail on Remand.-If the accused is remanded under the next preceding section, the justice may discharge him, upon his entering into a recognizance in the FORM Q in SCHEDULE ONE. (3) with or without sureties, in the discretion of the justice, conditioned for his appearance at the time and place appointed for the continuance of the examination. 588.-Hearing May be Ordered to Proceed during the time of Remand.--The justice may order the accused person to be brought before him, or before any other justice for the same territorial division, at any time before the expiration of the time for which such person has been remanded, and the gaoler or officer in whose custody he then is shall duly obey such order. 589.-Breach of Recognizance on Remand.-If the accused person does not appear at the time and place mentioned in the recognizance, the said justice, or any other justice who is then and there present, having certified upon the back of the recogniz ance the non-appearance of such accused person, in the FORM R in SCHEDULE ONE of the Code, (4) may transmit the recognizance (1) 57 & 58 Vic., c. 58, sec. 2. |