2. If such issue is directed before the accused is given in charge to a Jury for trial on the indictment, such issue shall be tried by any twelve Jurors. If such issue is directed after the accused has been given in charge to a Jury for trial on the indictment, such Jury shall be sworn to try this issue in addition to that on which they are already sworn.

3. If the verdict on this issue is that the accused is not then unfit to take his trial the arraignment or the trial shall proceed as if no such issue had been directed. If the verdict is that he is unfit on account of insanity the Court shall order the accused to be kept in custody till the pleasure of the Lieutenant-Governor of the province shall be known, and any plea pleaded shall be set aside and the Jury shall be discharged.

4. No such proceeding shall prevent the accused being afterwards tried on such indictment. R.S.C., c. 174, ss. 252 and 255.

As insanity is matter of defence, a Grand Jury have no authority by law to ignore a bill upon the ground that the prisoner is insane. It is their duty to find the bill, and then the Court, either on arraignment or trial, may order the prisoner's detention during the Queen's pleasure. (1)

The form of oath to be administered to the Jury to try whether a prisoner refusing to plead be insane or not is as follows:

"You shall diligently enquire and true presentment make for and on behalf of our Sovereign Lady the Queen whether A. B., the defendant whe stands here indicted for an indictable offence be insane or not, and a true verdict give according to the best of your understanding -So help you God."

In the case of R. v. Goode, where the prisoner was tried for using seditious language against the Queen, in her presence, it was held that the Jury might form their own opinion of the state of the prisoner's mind when arraigned, from his demeanor during the inquest, without any evidence being given on the subject; but under ordinary circumstances it is usual for the Judges to require some evidence as to the prisoner's then state of mind. (2)

738. Custody of persons formerly acquitted for insanity.—-If any person before the passing of this Act, whether before or after the first day of July, one thousand eight hundred and sixty-seven, was acquitted of any such offence on the ground of insanity at the time of the commission thereof, and has been detained in custody as a dangerous person by order of the Court before which such person was tried, and still remains in custody, the Lieutenant-Governor may make a like order for the safe custody of such person during pleasure. R.S.C., c. 174, s. 254.

739. Insanity of person to be discharged for want of prosecution.— If any person charged with an offence is brought before any Court to be discharged for want of prosecution, and such person appears to be insane, the Court shall order a Jury to be empanelled to try the sanity of such person, and if the Jury so empanelled finds him insane, the Court shall order such person to be kept in strict custody, in

(1) R. v. Hodges, 8 C. & P. 195.

(2) R. v. Goode, 7 A. & E. 536.

such place and in such manner as to the Court seems fit, until the pleasure of the Lieutenant-Governor is known. R.S C., c. 174, s. 256.

740. Custody of insane person. In all cases of insanity so found, the Lieutenant-Governor may make an order for the safe custody of the person so found to be insane, in such place and in such manner as to him seems fit. R.S.C., c. 174, ss. 253 and 257.

741. Insanity of person imprisoned.—The Lieutenant-Governor, upon such evidence of the insanity of any person imprisoned in any prison other than a penitentiary for an offence, or imprisoned for safe custody charged with an offence, or imprisoned for not finding bail for good behaviour or to keep the peace, as the LieutenantGovernor considers sufficient, may order the removal of such insane person to a place of safe keeping; and such person shall remain there, or in such other place of safe keeping, as the LieutenantGovernor from time to time orders, until his complete or partial recovery is certified to the satisfaction of the Lieutenant-Governor, who may then order such insane person back to imprisonment, if then liable thereto, or otherwise to be discharged. R.S.C., c. 174, 8. 258.

The Queen) The said A. B., who prosecutes for our Lady the Queen

""

บ C. D. array of the panel on the ground that it was returned by X. Y., sheriff of the county of (or E. F., deputy of X. Y., sheriff of the county of as the case may be),and that the said X. Y. (or E. F, as the case may be) was guilty of partiality (or fraud, or wilful misconduct) (1) on returning said panel.

9

(1) Particulars should be given shewing in what respect the Sheriff or Deputy Sheriff was partial or in what his alleged fraud or wilful misconduct consists.

LL.-(Section 668.)

Canada, Province of County of

66

CHALLENGE TO POLL.

The Queen

v

The said A. B., who prosecutes, etc. (or the said C. D., as the case may be) challenges G. H., on the ground that C. D. his name does not appear in the panel, (or "that he is not indifferent between the Queen and the said C. D.,” (1) or “that he was convicted and sentenced to 'death' or 'penal servitude,' or 'imprisonment with hard labour,' or 'exceeding twelve months,'

7 27

that he is disqualified as an alien."

PART LII.

APPEAL.

On this subject the English Commissioners made the following report :

"The procedure, under the existing law, subsequent to a trial, and in the nature of an appeal, may be arranged under three separate heads. These are, first, proceedings in error; secondly, cases for the Court of Crown Cases reserved; thirdly, motions for a new trial.”

Error." PROCEEDINGS IN ERROR are proceedings by which the Queen's Bench Division of the High Court is called upon to reverse a judgment on the ground that error appears on the record, a writ of error being granted only on the Attorney General's fiat. An appeal lies ultimately to the House of Lords. The record, however, is so drawn up that many matters by which a prisoner might be prejudiced, indeed, the matters by which he is most likely to be prejudiced, would not appear upon it; for instance, the improper reception or rejection of evidence, or a misdirection by the judge would not appear upon the record. This remedy, therefore, applies only to questiens of law, and only to that very small number of legal questions which concern the regularity of the proceedings themselves, e. g., an alleged irregularity in empanelling the Jury, (Mansel v. R.), (2) or in discharging a Jury (Winsor v. R.), (3) or à defect appearing upon the face of the indictment (Bradlaugh v. R.) (4). The result is that the remedy by writ of error is confined to a

-

(1) Particulars should be given here shewing in what respect the Juror is un-indifferent.

(2) Mansell v. R., 8 E. & B. 54 ; Dears. & B. 375; 27 L. J. (M. C.) 4.

(3) Winsor v R, L. R., 1 Q. B. 377; 35 L. J. (M. C.) 121.

(4) Bradlaugh v. R., 3 Q. B. D. 607.

very small number of cases of rare occurrence. It must be added that the procedure in writs of error is extremely technical. It is necessary in such cases to draw up the record, and this is an extremely formal and prolix document, though the materials from which it is compiled are simply short notes in a rough minute book kept by the officer of the Court. When the record is drawn up the Court of Appeal cannot look beyond it, but is tied down to the matters expressly entered in it. The proceedings on special verdicts and demurrers to evidence have practically fallen into disuse.

Reserved Case,—" The second mode in which proceedings in the nature of an appeal may be taken, is upon a CASE STATED by the judge for the Court for CROWN CASES RESERVED. Up to the year 1848 it was the practice if any question of law which would not appear on the record arose at a criminal trial at the Assizes, for the judge who tried the case to state the point for the opinion of all the judges, by whom it was afterwards considered and determined, no reasons for the determination being given. If the judges thought that the conviction was wrong, the person convicted was pardoned. There was no mode of reserving cases which arose at the Quarter Sessions. By 11 and 12 Vict., c. 78, a Court for Crown Cases Reserved was instituted, composed of the judges of the three common law Courts or any five of them, a Chief Justice or the Lord Chief Baron being one. Upon the

construction of the Act it has been considered that if a differance of opinion occurs between the five judges, the minority are not bound by the majority, but the matter must be referred to the whole body, -a course which is on many obvious grounds inconvenient. The existing power of appeal on a point reserved, is only on behalf of the accused. The consequence is that the judge cannot reserve a question unless he rules it against the accused, notwithstanding his own opinion may be that though the point is doubtful it should be decided in favor of the accused; and if ultimately it is determined that there has been an improper ruling against the accused, on some point of perhaps very little importance, or that some evidence, perhaps of little weight, has been improperly received or rejected, the Court of Appeal must avoid the conviction and has no power to grant a new trial The procedure is, however, extremely simple and free from technicality. No record is drawn up, and the Judge who reserves the point states a case in simple language.

New Trial.- -"The third proceeding in the nature of an appeal is a Motion for a NEW TRIAL. This is confined to cases which have either originated in or have been removed into the Queen's Bench Division, and as it seems (R. v. Bertrand, (1), disapproving of R. v. Scaiffe), (2), to cases of misdemeanour. A defendant who has been convicted may move for a new trial in these cases as in a civil case, but the decision of the Queen's Bench Division is final.

"It seems to us that in order to form a complete system these various forms of proceeding ought to be combined For this purpose

(1) R. v. Bertrand, L. R., 1 Priv. Coun. 520.

(2) R. v. Scaiffe, 2 Den. 281; 20 L. J. (M. C.) 229; 17 Q. B. 238.

we propose in the first place to constitute a single Court of Criminal Appeal closely resembling the Court for Crown Cases Reserved, but with two important differences. We propose that, as in other courts, the minority should be bound by the majority. A Court composed of fifteen judges is inconveniently large. If on a point of importance a Court of five should be divided it might be desirable that a further appeal should be possible. We accordingly propose that the Court should have power to permit an appeal to the House of Lords.

"We do not interfere with the present practice as to trials in the Queen's Bench Division, and we propose that in the case of such trials, the Queen's Bench Division should be the Court of Appeal, and that it should have power to give leave to appeal to the House of Lords. (1)

"As to the power to appeal and the cases in which an appeal should lie the draft code proposes to make censiderable changes in the existing law as regards both matter of law and matter of fact. With regard to matter of law, the Judge has at present absolute discretion as to reserving or not reserving questions which arise at the trial and do not appear on the record. This we think ought to be modified. We propose accordingly that the Judge shall be bound to take a note of such questions as he may be asked to reserve, unless he considers the application frivolous. If he refuses to grant a case for the Court of Appeal the Attorney General may in his discretion grant leave to the person making the application to move the Court of Appeal for leave to appeal, and the Court may direct a case to be stated. The Court on hearing the case argued may either confirm the ruling appealed from, or grant a new trial, or direct the accused to be discharged; in a word, it may act in all respects as in a civil action when the question is one of law, and that on the application of either side. This in some ways is favorable and in others unfavorable to accused persons. By the existing law the prisoner's right to appeal on a point of law is, generally speaking, subject to the absolute discretion of the Judge; but if he is permitted to appeal and if the Court above decides in his favor, the conviction is quashed, although in a civil case he would gain nothing but a right to a new trial. Under section 540, (2) the prisoner would be able to appeal with the leave of the Attorney General, against the will of the Judge, but if he succeeded he would in many cases only obtain a new trial. If the matter appealed upon was a mere irregularity, immaterial to the merits of the case, the Court of Appeal would have power to set it right. All this would diminish the value of the right of appeal to prisoners, though it would increase its extent. It must be observed too that the right of appeal on questions of law is given, equally to both sides. The Commissioners as a body express no opinion on the

(1) In Canada, the further appeal from the Provincial Appeal Court is to the Supreme Court of Canada, but it is only allowed in case of any Judge of the Provincial Court of Appeal dissenting from the opinion of the majority. (See Articles 742, and 750 post.)

(2) Article 744, post, is to the same effect as section 540 of the English Draft Code.