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Notes: (Continued.)

nor by the exertion of any improper influence. Thompson, supra.

R. v.

The inducement need not be held out to the prisoner direct, and, where it was held out by his employer to the relatives of the prisoner, it may be inferred that it was communicated to the prisoner. R. v. Thompson, 1893, 2 Q.B. 12. If, however, there is no suggestion of threat or inducement, or of a disposition on the part of the prosecutor to manufacture evidence, the evidence is admissible. Rogers v. Hawken, 1898, 33 Eng. Law Jour. 174. (Russell, L.C.J.,

and Mathew, J.)

In a case where the person in authority to whom the admission was made would not swear that he did not hold out any threat or inducement to the prisoner to make the statement, it was held that such onus is not satisfied by the evidence of the interpreter who said that he remembered that any statement the prisoner made was voluntary," since it was not shewn that the interpreter knew what was in law a voluntary statement. R. v. Charcoal, 1897, 34 Can. Law Jour. 210 (N.W.T.).

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A confession induced by false statements of the officer as to the knowledge already obtained in regard to the alleged offence is not a free and voluntary confession. So where an accused was charged with stealing a post letter, and had made admissions in presence of a detective and a post office inspector, after the latter had said to him, "There is no use your denying it. You were seen taking the letters out of the box. You may as well tell us what you did with them, as have it brought out in a court of law," and it was admitted by the Crown that there was no evidence that accused was seen taking the letters, it was held that the evidence was inadmissible, not only because of the threat implied in the statement of the inspector, but because the admission had been improperly obtained by means of a false statement by a person in authority. R. v. McDonald, 1896, 32 Can. Law Jour. 783 (per Scott, J., Supreme Court of N.W.T.).

The question came up in Ontario in a case of R. v. Day, 1890, 20 O.R. 209, before the Queen's Bench Division, and it was held that evidence obtained by questioning prisoners

Notes: (Continued.)

was legally admissible where the prisoner had been given the usual caution against saying anything. The Court, however, reprehended the practice of questioning prisoners, Armour CJ., stating that the superiors of the detectives should instruct them not to do so.

When a statement of one accused of murder is induced by words of a police officer which, under all the circumstances of the case, must give rise to some fear or hope of favor in the mind of the accused, such statement is not properly admitted in evidence against him. Bram v. United States, 1898, 18 Sup. Ct. Rep. (U.S.) 183. In that case, Bram was convicted of murder on the high seas. His arrest was effected on the arrival of the vessel at Halifax, and he was taken to the office of a police detective, and stripped and searched. In the course of the search, the detective said to him: "Bram, we are trying to unravel this horrible mystery; your position is rather an awkward one. I have had Brown in this office, and he made a statement that he saw you do the murder." Bram replied: "He could not have seen me; where was he?" The detective said: "He states he was at the wheel." Bram then said: "Well, he could not see me from there." The detectiveR then said: "Now, look here, Bram. I am satisfied that you killed the captain, from all I have heard from Mr. Brown; but some of us here think you could not have done all that crime alone. If you had an accomplice, you should say so, and not have the blame of this horrible crime on your own shoulders." Bram replied: "Well, I think-and many others on board the ship think— that Brown is the murderer; but I don't know anything about it." Bram was extradited to the United States; and evidence of the detective as to the above admissions having been admitted at the trial, the Supreme Court of the United States held that a new trial should be granted, and that the alleged admissions were obtained by undue influence, although the strict meaning of the detective's words were neither to threaten nor to promise.

There is much conflict of authority in England as to the ' admission of statements made by a prisoner to a police officer in answer to the latter's enquiries. It was held by Mr.

Notes: (Continued.)

Justice Smith in R. v. Gavin, 1885, 15 Cox Cr. Cas. 656, that when a prisoner is in custody the police have no right to ask him questions. The same view was expressed by Cave, J., in R. v. Male, 1893, 17 Cox Cr. Cas. 689, in which he said that the law does not allow the judge or jury to put questions in open court to a prisoner, and it would be monstrous if it permitted a police officer, without anyone present to check him, to put a prisoner through an examination and then produce the effects of it against him. The police officer should keep his mouth shut and his ears open, should listen and report, neither encouraging nor discouraging a statement, but putting no questions. The same learned judge is also reported as having stated at a nisi prius trial that he would exclude all evidence obtained by a system of private interrogation of accused persons by the police, and that he believed most of the judges agreed with his opinion. 20 Montreal Legal News 272.

The opposite view is, however, taken by Day, J., in R. v. Brackenbury, 1893, 17 Cox Cr. Cas. 628, where he admitted evidence of statements made by the accused in answer to questions put by the police immediately prior to the arrest, and expressed his dissent from the decision in R. v. Gavin, supra. See also R. v. Jarvis, 1867, L. R. 1 C.C.R. 96, and R. v. Reeve, 1872, L.R. 1 C.C.R. 362.

Canadian Indians-Confession to Government agent.

In R. v. Charcoal (Pah-cah-pah-ne-capi), 1897, 34 Can. Law Jour. 210, it was held by the Supreme Court of the Northwest Territories that in the case of Indians, who are wards of the Government, the rules forbidding the admissibility of confessions to a person in authority, without sufficient previous warning, should be strictly enforced; and evidence of an Indian agent, a Government officer appointed to carry out the Indian Act and "ex officio" a justice of the peace, as to an admission made by the accused Indian, was held to have been improperly received, and the conviction was quashed. (Wetmore, Richardson, Rouleau and McGuire, JJ.) Former deposition in civil proceeding.

See R. v. Douglas, ante 221 and note, ante 228.

[COURT OF QUEEN'S BENCH, QUEBEC.]

BEFORE WURTELE, J.

THE QUEEN v. SHEEHAN.

Mixed jury-Constitutional right to claim in Quebec-Re-election in favor of ordinary jury-Mixed jury a matter of procedure, not of organization of Court

Cr. Code 670.

1. A prisoner arraigned for trial in Quebec has the right to claim a jury composed for one-half at least of persons speaking his language if French or English.

2. The right to a mixed jury in Quebec conferred by 27-28 Vic. 41 (Prov. of Canada) in criminal cases is essentially a matter of criminal procedure and as such within the legislative authority of the Federal Parliament only, and not within the scope of provincial legislation under the heading of "the constitution and organization of the Courts," B. N. A. Act 92 (14).

3. A statute of the legislature of the Province of Quebec purporting to repeal the Act conferring such right is ultra vires so far as such right to a mixed jury is sought to be affected.

4. After having claimed a mixed jury and the recording of the order therefor by the Court, the prisoner has no absolute right to relinquish such claim and to have the order for a mixed jury superseded, but revocation may be ordered on such an application in the discretion of the Court.

DECIDED: March 15, 1897.

When the prisoner was arraigned he declared that his language was the French language, and he demanded mixed jury, to be composed of six jurors speaking the French language and of six speaking the English language. His demand was granted as a matter of course, but when he was brought to the bar for his trial, he asked as a right that the order for a mixed jury should be superseded, and that the jury should be formed in the ordinary manner.

J. L. Archambault, Q. C., and M. J. F. Quinn, Q. C., for the Crown.

J. F. Dubreuil, for the prisoner.

MONTREAL, March, 15, 1897.

WURTELE, J.

The Criminal Code contains no express provision for a mixed jury in the Province of Quebec, although the right to one is alluded to in art. 670, which lays down the rule to be followed with respect to peremptory challenges in such cases and assumes that the right exists.

....

Paragraph 2 of section 7 of the statute of the Province of Canada 27-28 Vict. chap. 41, enacts that "if any prosecuted party, upon being arraigned, demands a jury composed, for one-half, at least, of persons skilled in the language of his defence, if such language be English or French, he shall be tried by a jury composed, for the one-half, at least, of the persons upon the panel .... who are skilled in the language of the defence." This clause, which gives the right to a mixed jury, in the Province of Quebec, confers a constitutional right, which has no correlation with the organization of the courts of criminal jurisdiction, and is essentially a matter of criminal procedure; and its subject matter does not therefore fall under the legislative authority of the Quebec legislature. Although that legislature repealed the statute which contains this provision, it had no power to abrogate the right which had been given by the Parliament of Canada to persons brought before the courts for trial, to obtain a jury composed for one half of jurors speaking their own language, and the particular clause containing this right, therefore, remained in force notwithstanding the repeal of the statute by the legislature. The Parliament of Canada alone has the right to legislate on this matter, and as a matter of fact has done so in art. 665 of the Criminal Code which grants mixed juries in Manitoba and provides how they are to be formed.

The law confers a right which is not to be granted merely in the discretion of the Court, but which must be allowed as a matter of right. The statute does not say that the prosecuted party may be tried, but enjoins that he shall be tried by a jury which shall contain six jurors speaking his language.

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