Foreman.' But if a majority of the Grand Jury is of a different opinion, then the words, Not a true bill' are endorsed," (1) 6 "When the Grand Jury have heard the evidence, if they think it a groundless accusation, they endorse upon the bill of indictment, not a true bill' or 'not found the bill is then thrown out, and the party accused discharged without further answer. But a fresh bill may afterwards be preferred to a subsequent Grand Jury. If however, they are satisfied of the truth of the accusation, they then endorse 'a true bill' the indictment is then said to be found and the party stands indicted. A majority of the Grand Jury must agree, i. e., not less than twelve." (2) Saunders says: "Upon the conclusion of the whole evidence, the Grand Jury decide upon whether or not they will find the bill. To justify their finding it, a majority of their body must give this course their sanction, and that majority must consist of twelve at least. If they agree to find it, the chairman indorses it with the words a true bill' and signs his name. If, however, they agree' to ignore it, the endorsement is in the same way, but with the words No true bill." (3) 6 Chitty says: "After the Grand Jury have heard the evidence, they are to decide whether the bill shall be found or rejected. In the finding, twelve of the jurymen, at least, must concur, but, if the rest of the jury dissent, the finding will still be valid. The jury cannot find one part of the same charge to be true and another false, but they must either maintain or reject the whole." (4) Harris says: "If the majority of them think that the evidence makes out a sufficient case, the words a true bill' are indorsed on the back of the bill: if they are of the opposite opinion, the words not a true bill' are so endorsed." (5) Objections to Grand Jury.—It has recently been decided that objections to the constitution of a Grand Jury cannot be taken by way of challenge. The question came up at Quebec in October 1892, in the case of R. v. Mercier and others, upon an indictment for conspiracy The defendants objected to the Grand Jury, as a whole, by a challenge to the array, and, to some individual members of the Grand Jury, by way of challenge to the polls. On behalf of the Crown, it was contended that there was in this country no such right of challenge; and Bossé, J., after fully reviewing and ably discussing the authorities on the subject, came to the following conclusions: 1. That, although both English and Canadian statutes contain provisions for challenging the petty jury, they contain none for challenging the Grand Jury; 2. That we have in Canada no known precedent giving the right to challenge the Grand Jury or any of the Grand Jurors; 3 That, in England, it was admitted, in 1811, notwithstanding the opinions of Hawkins and Hale, (6) that, for two hundred years, objections to the Grand Jury were always taken by way of plea to the indictment, and not by way of challenge; and, 4. That since 1811, the matter had not been controverted, and that, in 1848, in the case of R. v. Duffy, (7) the only case reported on the subject, since 1811, objections to the Grand Jury were taken by way of plea. To shew the reason of the difference of procedure in objecting to the Grand Jury, and in objecting to the Petit Jury, Bossé, J., quoted, from the case of R, v. Sheridan, the following remarks of Solicitor-General Bushe: "It is a mistake of the nature of a challenge to suppose that it lies to a Grand Juror. A challenge is an objection by a man about to be tried, to the man who is about to try him, but the Grand Jury are not to try any man; they are not brought into contact with any accused person. Their oath merely binds them to enquire into the offences brought before them and pronounce whether there be sufficient reason for putting those offences into a state for further investigation. Until they be found, no man can tell who they are; when he, against whom they find a bill, sees their name in the caption of the indictment, if he discover a legal objection to any of them, he may, by plea, urge that objection as a reason for not answering to the indictment, but the notion of a previous challenge would not only be against principle, but induce absurdities and injustice in practice." (1) The learned Judge also quoted the following remarks of Chief Justice Downes : "The objection to such a challenge is founded upon good reason. The party who comes to urge it may or may not be present-may or may not be indicted; and if it were open to him to make an objection by challenge, because informations have been sworn against him, so must it, in all cases, be open to every person against whom informations have been sworn; and if so, besides the great inconvenience it must create in the administration of justice, many persons must be precluded from availing themselves of the objection afterwards; because the rule of pleading is, that to take advantage of a disqualification, it must be alleged, in the first instance, and if afterwards urged, it must be disallowed, because the party has lost his opportunity - and if he were absent, it was his own fault, he might have been present. Now, although we have no instance, from the oldest books in the law to those our own time, where a challenge to a Grand Jury has been taken, there are abundant instances, in which the party has availed himself of objections to the Grand Jurors by plea: and these instances demonstrate the mode by which the party is to avail himself of such objections. It would be monstrous to say that an illegal Grand Jury should find an indictment, and that the man accused should have no mode to avoid it. If it were a question unsettled, and the accused had no other mode of availing himself of the objection, save by challenge, there is no doubt that he must have the right. But if there be no instance to be found of a challenge,for hundreds of years, and there be abundant instances of pleas, it cannot be doubted that the latter is the only mode by which a party can avail himself of an objection." (2) The judgment of Bossé, J., was concurred in by Blanchet, J., and the challenges were rejected. (3) Article 656, post, now provides that any objection to the constitution of the Grand Jury may be taken by motion to quash the indictment. Where a prosecutor was on the panel of Grand Jurors who found a true bill, the indictment was quashed, upon that ground and it was held that it made no difference that he was not present when the bill was found. (4) It is no ground for quashing an indictment that some of the Grand Jurors are related to the officer who arrested the prisoner; nor is a sheriff disqualified from summoning the jury, because he has directed the arrest. (5) Where three persons were committed for trial on a charge of conspiracy and the Solicitor-General, afterwards, directed a bill to be preferred against a fourth person who was not committed, and all four were indicted together for the same conspiracy such a course was held to be unobjectionable. (6) (1) R. v. Sheridan, 31 St. Tr. 552. (2) R. v. Sheridan, 31 St. Tr. 572. (3) R. v. Mercier el al, 1 Que. Off. Rep., (Q. B.), 541. (4) R. v. Cunard, Ber. (N. B.) 326. (5) R. v. Mailloux, 3 Pugsley, 493. (6) Knowlden, v. R., 5 B. & S. 532; 33 L. J. (M. C), 219. 642. No trial upon any Coroner's Inquisition.-After the commencement of this Act no one shall be tried upon any coroner's inquisition. 643. Oath in open Court not required.-It shall not be necessary for any person to take an oath in open court in order to qualify him to give evidence before any Grand Jury. RS.C., c. 174, s. 173. 644. Oath may be administered by Foreman of Grand Jury.-The foreman of the Grand Jury or any member of the Grand Jury who may, for the time being, act on behalf of the foreman in the examination of witnesses, may administer an oath to every person who appears before such Grand Jury to give evidence in support of any bill of indictment; and every such person may be sworn and examined upon oath by such Grand Jury touching the matters in question. R.S.C., c. 174, s. 174. 645. Names of witnesses to be endorsed on bill of indictment.— The name of every witness examined, or intended to be examined, shall be endorsed on the bill of indictment; and the foreman of the Grand Jury, or any member of the Grand Jury so acting for him, shall write his initials against the name of each witness sworn by him and examined touching such bill of indictment. R.S.C, c. 174, s. 175. 646. Names of witnesses to be submitted to Grand Jury.—The name of every witness intended to be examined on any bill of indictment shall be submitted to the Grand Jury by the officer prosecuting on behalf of the Crown, and no others shall be examined by or before such Grand Jury unless upon the written order of the presiding judge. R.S.C., c. 174, s. 176. Although the Grand jury are not, usually, very strict as to documentary evidence, and will often admit copies instead of requiring the production of originals, and sometimes even receive parol proof of matters which, according to strict rules of evidence, should be in writing, they may, if they think fit, insist upon the same evidence, written and verbal, as may be necessary at the trial. It is, therefore, prudent in all cases, to be provided, at the time of the bill being preferred, with the same evidence with which you intend, afterwards to support the indictment, at the trial. The deposition of a witness who is so ill as not to be able to travel, which, under Article 687, post, may be given in evidence before a petty Jury on the trial, may also be read in evidence before the Grand Jury. (1) But, before the deposition is read before the Grand Jury, the presiding judge should, by evidence taken in the presence of the accused, satisfy himself of the existence of the facts required, by Article 687, to make such deposition admissible in evidence. (2) It is no objection that, at the trial, witnesses are called and examined, whose names are not endorsed on the indictment; and, in strictness, it is not necessary for the prosecutor to call every witness whose name is on the back of the indict (1) R v. Clements 2 Den. 251, 20. L. J. (M. C.) 193. (2) R. v. Beaver, 10 Cox, 274, See, also, R. v. Bullard, 12 Cox. 353, and R. v. Gerrans, 13 Cox. 158. ment, although it is usual to do so, in order that the defendant may have the benefit of cross examination. (1) And, if the prosecutor will not call them the judge in his discretion may. (2) A witness who gives false evidence before a Grand Jury is indictable for perjury, and the other witnesses examined on the same bill are good witnesses to prove it. (3) Although the Grand Jury have been formally discharged, yet, if they have not left the precincts of the Court, nor separated, they may be recalled and charged with other bills. (4) 647. Fees for swearing witnesses.— Nothing in this Act shall affect any fees by law payable to any officer of any court for swearing witnesses, but such fees shall be payable as if the witnesses had been sworn in open court. R.S.C., c. 174, s. 177. 648. Bench warrant and certificate.-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— (a.) 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 ; (b) the officer of the court at which the said indictment is found or (if the place or 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. The certificate may be in the form GG in schedule one hereto, (5) or to the like effect. 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. The warrant may be in the form HH in schedule one hereto, (6) or to the like effect. 2. 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 the form II in schedule one hereto, (7) or to the like effect, or admit him to bail as in other cases provided; but (1) R. v. Simmonds, I C. & P. 84; R. v. Beezley, 4 C. & P. 220; R. v. Vincent 9 C. & P. 91. (2) R. v. Whitehead, 4 C. & P. 322, n : R. v. Holden, 8 C. & P. 610. 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. 3. 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. Such warrant may be in the form JJ in schedule one hereto, (1) or to the like effect. R.S.C., c. 174, ss. 33, 34 and 35. Outlawry.—Formerly, when an indictment, was found by a Grand Jury against any person, and summary process proved ineffectual to the apprehension of the defendant, process of outlawry was issued ;-outlawry being a punishment inflicted by the law upon an offender, for contumacy, in refusing to render himself amenable to justice. (2) It lay not only in cases of treason and felony, but it appears to have been considered sustainable on an indictment for any crime whatever. (3) An outlawry in cases of treason or felony amounted to a conviction and attainder of the offence charged in the indictment as much as if the offender had been found guilty upon trial by a jury; (4) but, in cases of misdemeanor. it did not enure as a conviction for the offence found by the indictment, but merely as a conviction of the contempt for not answering. (5) By Article 962 of the present Code, outlawry is abolished, so far as Canada is concerned; and although it is still an integral part of the criminal law in England, it seems that even there, proceedings in outlawry are so rare as to be almost extinct. (6) The Royal Commissioners introduced into their Draft Code, a section to abolish outlawry in England and, in their Report, they refer to the subject, in the following terms:-" If an indictment is found against a person who cannot be apprehended-if, for instance, he goes to a foreign country-the ultimate process against him is oullawry, which has all the effects of a conviction, including that of forfeiture abolished in all other cases. This process has become practically obsolete, and, in these times in which extradition treaties have been very generally adopted, it is less likely to be of use than formerly. We accordingly propose to abolish it." (1) For form JJ, see p. 612, post. (2) Chitty's Cr. L. 347; Bac. Abr., outlawry; Doct. & Stud. dial. 2, cap. 3. (3) 2 Hale, 194; 2 Hawk, c. 27, s. 113. (4) 4 Bl. Com. 319; 2 Hawk. c. 48, s. 22. (5) R. v. Tippen, 2 Salk. 494. (6) Short & Miller's Cr. Off. Prac. 384. |