he the said A. B.

"

97

at

said sum of

in the County (or " District " etc.) of was upon the complaint of the said C. D., etc, (Reciting the information before the magistrates, in the past tense), convicted before the said (Names of the magistrates) two of Her Majesty's justices of the peace in and for the said County (or "District etc), for that he the said A. B. did on unlawfully assault and beat the said C. D. And the said justices did then and there adjudge the said A. B. for his said offence to forfeit and pay the sum of and in default of immediate payment of the by the said A. B., they the said justices did adjudge him the said A. B. to be imprisoned for the space of two calendar months unless the said sum of should be sooner paid, the whole as more fully appears by the record of the said conviction: And the said assault and battery of the said C. D. of which the said A. B. was so convicted as aforesaid, and the wounding of the said C. D. mentioned and alleged in the said indictment are one and the same assault and battery, and not other and different. And he the said A. B. further saith that he the said A. B. hath duly paid the said sum of so adjudged by the said justices to be paid under the said conviction: Wherefore the said A. B. prays judgment, and that he may be discharged from the said premises in the said indictment mentioned.

[If the complaint before the justices was dismissed, frame the plea accordingly.]

REPLICATION.

And hereupon J. N. (the Clerk of the Peace, or Clerk of Arraigns) who prosecutes for our said Lady the Queen, in this behalf, says, that, by reason of anything in the said plea of the said A. B., above pleaded, in bar alleged, our said Lady the Queen ought not to be precluded from prosecuting the said indictment against the said A. B.; because he says that there is not any record of the said alleged conviction in manner and form as the said A. B. hath above in his said plea alleged: And this he the said J. N. prays may be enquired of by the country.

[If the plea is based upon a dismissal of the complaint before the justices, the replication should traverse the fact of the granting of the certificate of dismissal.]

PART XLVII.

CORPORATIONS.

635. Corporations may appear by attorney.—Every corporation against which a bill of indictment is found at any court having criminal jurisdiction shall appear by attorney in the court in which

such indictment is found, and plead or demur thereto. R.S.C., c. 174, s 155.

636. Certiorari, etc., not necessary.-No writ of certiorari shall be necessary to remove any 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. R.S.C., c. 174, s. 156.

637. Notice to be served on corporation. The prosecutor, when any such indictment is found 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 cheif 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. R.S.C., 174, s. 157.

638. Proceedings on default.-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. R.S.C., c. 174, s. 158.

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639. Trial may proceed in the absence of a corporation defendant. -The court may-whether such corporation appears and pleads to the indictment, or whether a plea of not guilty is entered by order of the court-proceed with the trial of the indictment in the adsence 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. R.S.C., c. 124, s. 159.

PART XLVIII.

PREFERRING INDICTMENT.

640. Jurisdiction of Courts.-Every Court of Criminal Jurisdiction in Canada is, subject to the provisions of Part XLII., competent to try all offences wherever committed, if the accused is found or apprehended or is in custody within the jurisdiction of such court, or

if he has been committed for trial to such court or ordered to be tried before such court, or before any other court, the jurisdiction of which has by lawful authority been transferred to such first mentioned court under any Act for the time being in force Provided that nothing in this Act authorizes any court in one province of Canada to try any person for any offence committed entirely in another province, except in the following case :

2. Every proprietor, publisher, editor or other person charged with the publication in a newspaper of any defamatory libel, shall be dealt with, indicted, tried and punished in the province in which he resides, or in which such newspaper is printed.

The words all offences wherever committed " used in this Article, must be interpreted to mean offences committed wherever the criminal law of Canada extends. See comments under Article 542, ante; And see, also, the case of McLeod v. Attorney General of New South Wales, and comments, at pp. 211, 213, ante.

641. Sending bill before Grand Jury.—Any one who is bound over to prosecute any person, whether committed for trial or not, may prefer a bill of indictment for the charge on which the accused has been committed, or in respect of which the prosecutor is so bound over, or for any charge founded upon the facts or evidence disclosed on the depositions taken before the justice. The accused may at any time before he is given in charge to the jury apply to the court to quash any count in the indictment on the ground that it is not founded on such facts or evidence, and the court shall quash such count if satisfied that it is not so founded. And if at any time during the trial it appears to the court that any count is not so founded, and that injustice has been or is likely to be done to the accused in consequence of such count remaining in the indictment, the court may then quash such count and discharge the jury from finding any verdict upon it.

2. The Attorney-General or any one by his direction or any one with the written consent of a judge of any Court of Criminal Jurisdiction or of the Attorney-General, may prefer a bill of indictment for any offence before the Grand Jury of any court specified in such consent; and any person may prefer any bill of indictment before any Court of Criminal Jurisdiction by order of such court.

3. It shall not be necessary to state such consent or order in the indictment. An objection to an indictment for want of such consent or order must be taken by motion to quash the indictment before the accused person is given in charge.

4. Save as aforesaid, no bill of indictment shall after the commencement of this Act be preferred in any province of Canada.

See remarks of the Royal Commissioners at pp. 527–530, ante.

This Article makes it clear that, in future, no one but the Attorney General can prefer an indictment which is not preceded by and based upon a preliminary examination of witnesses before a Magistrate, unless such examination is dispensed with by an order of the Court, or by the written consent of the

Attorney General or of a judge of any Court of Criminal Jurisdiction; and it gives the defendant the right to move the Court to quash any indictment, or any count of an indictment not founded upon the facts or evidence disclosed in the depositions taken before the Magistrate.

The Grand Jury.—It requires the assent of at least twelve Grand Jurors to find an indictment and put the accused on his trial; and it is usual to summon twenty-four Grand Jurors; but the number empanelled and sworn must not exceed twenty three, as otherwise a complete jury of twelve of them might find a bill, when, at the same time, a complete jury of twelve others might dissent.

Lord Denman C. J., in referring to the subject, in the case of R. v. Marsh, said, "The Court has no doubt that twenty three is the limited number. It is a matter of practice proved by authorities in the only way in which proof can be given of a point of that kind, which has been undisputed," (1)

Woolrych says, "Twelve at least must be sworn, and not more than twenty three, in order that twelve may be a majority." (2)

"As many as appear upon this panel are sworn upon the Grand Jury to the amount of twelve, at the least, and not more than twenty-three, that twelve may be a majority. (3)

Bishop says, "Twelve of the Grand Jurors must consent, in order to render a finding valid.” (4)

Kennedy, in his work on juries, says: "As many as appear of those summoned are sworn upon the Grand Jury, not less than twelve, nor more than twenty-three, that a majority of twelve, at least, may be obtained; and the foreman, upon the consideration of every indictment, ought to see that twelve be agreed." (5)

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Chitty says: The Grand Jury must consist of twelve, at least, and may contain any greater number, not exceeding twenty-three, that twelve may form a majority of the jurors." (6)

"The Grand Jury' must necessarily consist of twelve at least, and may contain any greater number under twenty four; the object of which is that a certain majority may always be secured. Twelve or more of them must find the bill of indictment, though it is not necessary that all above that number should agree to the bill.

The evidence having been considered, if twelve of the Grand Jury deem the charge sufficiently proved, their clerk endorses on the indictment, A true bill'; if otherwise, No true bill.'" (7)

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After the Grand Jury are assembled, the following oath is administered to the foreman :

"You, as foreman of this Grand Inquest, for Our Sovereign Lady the Queen and the body of this county (or "district," etc,) of

shall diligently enquire, and true presentment make of all such matters and things as shall be given you in charge. The Queen's counsel, your fellows', and your own, you shall keep secret. You shall present no one through envy, hatred, or malice; neither shall you leave any one unpresented through fear, favor, affection, or hope of reward or gain; but you shall present all things truly

(1) R. v Marsh, 6 A. & E. 242; 1 Nev. & P. 187.

(2) Woolrych, Cr. L. 42.

(3) Chase's Blackstone, 1005; Ewell's Blackstone, 566: Browne's Blackstone, 685

(4) Bish. Cr. Proc. s. 854.

(5) Kennedy's Law & Prac. of Juries 116.

(6) Chitty's Cr. L. 306.

(7) Cornish's Juryman's Legal Handbook, 49, 51.

and indifferently as they come to your knowledge, according to the best of your understanding: So help you God!"

The rest of the Grand Jury, by three at a time, are then sworn, as follows:

"The same oath which your foreman hath taken on his part, you and every one of you shall well and truly observe and keep on your part: So help you God!"

When the Grand Jury have been sworn, they receive a charge from the presiding judge, and are instructed generally in the duties which they have to perform; and, where any of the cases to be brought before them involve difficult points of law, these are explained to them.

The Grand Jury then retire to the grand-jury room to receive the bills of indictment to be submitted to them. As each case comes up for the Grand Jury's consideration, the witnesses are called into the Grand Jury room, in the order in which their names appear endorsed on the indictment, and, after being sworn by the foreman, they give their evidence; and if the offence should appear to a majority (consisting of twelve at least) of the jury to have been sufficiently proved, the indictment will be endorsed True bill," but "if the majority" (says Archbold) "should be of opinion that the offence has not been sufficiently proved, the words, No true bill,' are in that case, endorsed on the indictment." (1)

"

It is a maxim of our criminal law that no man can be convicted of an indictable offence, except, as Blackstone says, "by the unanimous voice of twenty four of his equals and neighbors, that is, by twelve, at least, of the Grand Jury, in the first place, assenting to the accusation; and, afterwards, by the whole petit jury, of twelve more, finding him guilty."

Although a Grand Jury composed of any number between twelve and twenty three is a legal Grand Jury, it is the almost invariable practice to have the full number of twenty three sworn, so, that, as Mr Justice Wurtele said, at Montreal, in June 1893, -to a Grand Jury consisting of twenty three members, -twelve or more of their number must concur in finding or rejecting a bill.

Nearly all the authorities, by the tenor of their comments upon the subject, appear to assume that the Grand Jury is always composed of the full number of twenty three.

Prentice says: "If the offence appears, to a majority of them, consisting of twelve at least, to be sufficiently proved, the clerk of the Grand Jury will endorse on the indictment, true bill; but if the majority should be of opinion that the offence has not been sufficiently proved, the words no true bill' are indorsed on the indictment." (2)

Cremazie says,-" Les jures après avoir entendu les témoignages doivent décider sur la culpabilité de l'accuse. Pour donner cette decision il faut qu'ils soient au moins douze c'est-à-dire qu'il faut que douze jurés trouvent le prisonnier coupable ou non-coupable pour que leur décision soit valide." (3)

"After the evidence has been gone into, if a majority, (at least twelve) of the Grand Jury consider the charge sufficiently proved, their clerk, or the foreman will indorse on the indictment a true bill; but if they consider otherwise, then no true bill' or 'not found.'” (4)

"The witnesses are severally called in before the Grand Jury and examined by them; and if a majority of the Grand Jury (amounting to twelve at the least), be of opinion that the evidence thus adduced makes out a sufficient case against the prisoner to warrant his being put upon his trial before the petty jury, the foreman endorses on the bill, A true bill,' and signs his name to it A. B.,

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(1) Arch. Cr. Pl. & Ev. 21 Ed. 86.

(2) Prentice Cr. Pro. 116.

(3) Cremazie,-Lois Criminelles Anglaises, p. 179.

(4) Barbour's Cr. L. 668.