598.-Recognizance to Prosecute or give Evidence. When any one is committed for trial the justice holding the preliminary inquiry may bind over, to prosecute, some person willing to be so bound, and bind over every witness whose deposition has been taken, and whose evidence in his opinion is material, to give evidence at the court before which the accused is to be indicted. 2. Every recognizance so entered into shall specify the name and surname of the person entering into it, his occupation or profession if any, the place of his residence and the name and number, if any, of any street in which it may be, and whether he is owner or ten-` ant thereof or a lodger therein. 3. Such recognizance may be either at the foot of the deposition or separate therefrom, and may be in the FORM W, X or Y in SCHEDULE ONE of the Code, (1) or to the like effect, and shall be acknowledged by the person entering into the same, and be subscribed by the justice or one of the justices before whom it is acknowledged. 4. Every such recognizance shall bind the person entering into it to prosecute, or give evidence, (both or either as the case may be), before the court by which the accused shall be tried. 5. All such recognizances and all other recognizances taken under the Code shall be liable to be estreated in the same manner as any forfeited recognizance to appear is by law liable to be estreated by the court before which the principal party thereto was bound to appear. 6. Whenever any person is bound by recognizance to give evidence before a justice of the peace, or any criminal court, in respect of any offence under the Code, any justice of the peace, if he sees fit, upon information being made in writing and on oath, that such person is about to abscond, or has absconded, may issue his warrant for the arrest of such person: and if such person is arrested any justice of the peace, upon being satisfied that the ends of justice would otherwise be defeated, may commit such person to prison until the time at which he is bound by such recognizance to give evidence, unless in the meantime he produces sufficient sureties, (1) For Forms W, X and Y, see pp. 240, and 241, post. but any person so arrested shall be entitled on demand to receive a copy of the information upon which the warrant for his arrest was issued. If the witness committed for trial elects a speedy trial under the provisions of Part LIV. of the Code, relating to speedy trials of indictable offences, any recognizance taken under the above article, 598, for binding a prosecutor or a witness will be obligatory on each person bound thereby, as to all things therein mentioned with reference to such speedy trial, as if such recognizance had been originally entered into for the doing of such things with reference to such speedy trial; provided, however, that at least forty-eight hours' notice shall be given, either personally or by leaving the same at the place of residence of the persons bound, to appear before the judge at the place where such speedy trial is to be had. (Code, Art. 779, post.) 599. Witness Refusing to be Bound Over.— Any witness who refuses to enter into or acknowledge any such recognizance as aforesaid may be committed by the justice holding the inquiry by a warrant in the FORM Z in SCHEDULE ONE of the Code, (1) or to the like effect, to the prison for the place where the trial is to be had, there to be kept until after the trial, or until the witness enters into such a recognizance as aforesaid, before a justice of the peace having jurisdiction in the place where the prison is situated: Provided that, if the accused is afterwards discharged, any justice having such jurisdiction may order any such witness to be discharged by an order which may be in the Form A A in the SAID SCHEDULE, (2) or to the like effect. 600. Transmission of Documents.-The following documents shall, as soon as may be after the committal of the accused, be transmitted to the clerk or other proper officer of the court by which the accused is to be tried, that is to say, the information, if any, the depositions of the witnesses, the exhibits thereto, the statement of the accused, and all recognizances entered into, and also any depositions taken before a coroner if any such have been sent to the justice. (1) For Form Z, see p. 241, post. 2. When any order changing the place of trial is made, the person obtaining it shall serve it, or an office copy of it, upon the person then in possession of the said documents, who shall thereupon transmit the indictment, if found, to the officer of the court before which the trial is to take place. Section 12 of the North West Territories Act (54-55 Vict., c. 22) directs that every justice of the peace or other magistrate holding a preliminary investigation into any criminal offence, which may not be tried under the provisions of " The Summary Convictions Act," shall, immediately after the conclusion of such investigation, transmit, to the clerk of the Court for the judicial district in which the charge was made, all informations, depositions, recognizances, and papers connected with such charge, and that the clerk of the Court shall notify the judge thereof. 601. – Rule as to Bail.-When any person appears before any justice charged with an indictable offence punishable by imprisonment for more than five years, other than treason or an offence punishable with death, or an offence under Part IV of the Code, (1)—and the evidence adduced is, in the opinion of such justice, sufficient to put the accused on his trial, but does not furnish such a strong presumption of guilt as to warrant his committal for trial, the justice jointly with some other justice, may admit the accused to bail upon his procuring and producing such surety or sureties as, in the opinion of the two justices, will be sufficient to insure his. appearance at the time and place when and where he ought to be tried for the offence; and thereupon the two justices shall take the recognizances of the accused and his sureties, conditioned for his appearance at the time and place of trial, and that he will then surrender and take his trial and not depart the court without leave ; and, in any case in which the offence committed or suspected to have been committed is an offence punishable by imprisonment for a term less than five years, any one justice, before whom the accused appears, may admit to bail in manner aforesaid; and such justice or justices may, in his or their discretion, require such bail to justify upon oath as to their sufficiency, which oath the said justice or (1) Part IV of the Code, deals with Treason and other offences against the Queen's authority and person. justices may administer; and in default of such person procuring sufficient bail, such justice or justices may commit him to prison, there to be kept until delivered according to law. 2. The recognizance mentioned in this section shall be in the FORM BB in SCHEDULE ONE. (1) In the case of a prisoner charged with an indictable offence punishable by more than five years imprisonment,―other than treason or an offence punishable with death, or any offence against Part IV of the Code-this Article gives to two justices, or, (by virtue of Article 541 of the Code, ante,) to a judge of sessions, police magistrate, recorder, or other functionary vested, by that Article, with the powers of two justices, a discretionary power to admit him to bail; and in the case of a prisoner charged with an offence punishable by less than five years imprisonment, he may be admitted to bail by one justice. In deciding whether the accused should or should not be admitted to bail it should be borne in mind that, the purpose of a committal to prison before trial is to ensure the appearance of the accused at the time and place when and where he is to be tried; and justices should consider the circumstances of each case, with this object only in view. As this duty involves an enquiry in which discretion must be exercised, no general rule can be laid down. Usually, however, it will be sufficient for the justices to look at the nature and magnitude of the charge, the position in life of the accused, the cogency of the evidence against him, and the probable severity of the punishment likely to follow a conviction; and, if they consider it probable that the accused would sooner that he and his sureties should forfeit a sum of money than run the risk of a trial and conviction and the sentence likely to follow, they should refuse to admit the accused to bail. The amount of the recognizance is entirely in the justice's discretion, and should depend upon the nature of the charge and the position of the parties. A magistrate must not, however, in a case in which the accused is entitled to be admitted to bail, require excessive bail, so as in (1) For Form BB, see p. 243, post. effect to amount to a denial of bail; or he may render himself liable to an action at the suit of the person wrongfully imprisoned. or even to a criminal prosecution. (1) Still, it has been held that the power of a magistrate to accept or refuse bail, even in cases where the accused has a right to be bailed, is a judicial function, and that an action will not lie against him for refusing to take bail in such cases, in the absence of proof of express malice, even though the sureties tendered are found sufficient. (2) For the purpose of determining the sufficiency of the persons tendered as sureties, the justice may require their names to be given to the prosecutor, some time previously, say 24 or 48 hours, and he may administer to the persons tendered an oath "to make true answer to all such questions as may be demanded of them” ; and he may then put to them the usual questions as to their means, property and liabilities and whether or not they are solvent, and so on; but the justice ought not to interfere in any way to disquiet them from becoming bound as bail: (3) nor can he legally enquire into the personal character or political opinions of the persons offered as bail. His duty is restricted to an enquiry into the sufficiency of the property of the sureties to meet the recognizance. (4) In a case which came before Martin B., that learned judge is reported to have stated his opinion to be that if the justice is satisfied of the solvency of the persons tendered as bail, he is not justified in rejecting them on account of any alleged objections to their moral character, or from the fact of their being indemnified by the defendant. (5) 602. Bail After Committal.-In case of any offence other than treason or an offence punishable with death, or an offence under Part IV. of the Code, where the accused has beenfinally committed as herein provided, any judge of any superior or (1) R. v. Badger, 12 L. J. M. C. 66; 4 Ad. & E. 468; R. v. Tracey, 15 L. J. M. C. 145. (2) Linford v. Fitzroy, 18 L. J. M. C. 108; 13 Q. B. 240. (3) R. v. Saunders, 2 Cox, C. C. 240. (4) R. v. Badger, supra. (5) R. v. Broome, 18 L. T. 19. |