32 & 33 VIC., CHAP. XXXV.

An Act for the more speedy trial, in certain cases, of persons charged with felonies and misdemeanors in the Provinces of Ontario and Quebec.

[Assented to 22nd June, 1869.]

HER MAJESTY, by and with the advice and consent of the Senate and House of Commons, enacts as follows:

1. Any person committed to a gaol for trial on a charge of being guilty of any offence for which he may be tried at a Court of General Sessions of the Peace, may, with his own consent, of which consent an entry shall then be made of record, and subject to the provisions hereinafter made, be tried out of Sessions, and if convicted may be sentenced by the Judge.

This Act was extended to Manitoba by the 38 Vic., chap. 54, and as respects the Province of Manitoba the expression, “a Court of General Sessions of the Peace" in the said Act, shall mean and include the Court of Queen's Bench of that Province; and the expression," the Judge," shall mean "the Chief Justice," or "a puisne Judge" of the said Court of Queen's Bench; and the expression," County-Attorney or Clerk of the Peace," shall mean the prothonotary of the said Court of Queen's Bench. It applies also in the District of Algoma. See 37 Vic., chap. 41.

2. It shall be the duty of every Sheriff within twenty-four hours after any prisoner charged as aforesaid is committed to gaol for trial, to notify the Judge in writing that such prisoner is so confined, stating his name and the nature of the charge preferred against him, whereupon, with as little delay as possible, such Judge shall cause the prisoner to be brought up before him.

3. Having obtained the depositions on which the prisoner was so committed, the Judge shall state to him,—

(1) That he is charged with the offence, describing it;

(2) That the prisoner has his option to be forthwith tried before such Judge without the intervention of a Jury, or to remain untried until the next sitt

ings of such sessions or of a Court of Oyer and Terminer, or, in Quebec, of any Court having criminal jurisdiction;

(3) If the prisoner demands a trial by Jury, the Judge shall remand him to gaol; but if he consents to be tried by the Judge without a Jury, the County Attorney or Clerk of the Peace shall draw up a record of the proceedings as nearly as may be in one of the forms in the Schedules A and B to this Act; if upon being arraigned upon the charge the prisoner pleads guilty, such plea shall be entered in the Record, and the Judge shall pass the sentence of the law on such prisoner, which shall have the same force and effect as if passed at any Court of General Sessions of the Peace.

4. If the prisoner upon being so arraigned and consenting as aforesaid, pleads not guilty, the Judge shall appoint an early day, or the same day, for his trial, and it shall be the duty of the County Attorney or Clerk of the Peace to subpoena the witnesses named in the depositions, or such of them, and such other witnesses as he may think requisite to prove the charge, to attend at the time appointed for such trial, and the prisoner being ready, the Judge shall proceed to try him, and if he is found guilty, sentence shall be passed as in the last preceding section mentioned, but if he is found not guilty, the Judge shall immediately discharge him from custody so far as respects the charge in question.

Under this statute it is not necessary to have more than one record, in which shall be entered the proceedings from time to time taken, until the final determination of the matter.

After the prisoner has heard the charge read to him, and has elected to have it tried by the Judge and has pleaded to it, and has been tried, he cannot object to the record which has been made up against him, because it describes or lays the charge in different forms to meet the facts of the case, so long as it does not contain different distinct offences. The Judge's jurisdiction is not confined to the trial only of the charge as stated in the commitment. Where therefore a prisoner was committed to gaol for trial on a charge of kidnapping another person, with intent to cause such person to be secretly confined or imprisoned in Canada, which is made felony under the Statute 32 & 33 Vic., chap. 20, s. 69, and on being brought before the Judge under this statute (32 & 33 Vic., chap. 35), was charged and tried also for the other offence under the statute of, without lawful authority, forcibly seizing and confining any other person within Canada. It was held that this

might be lawfully done, the prisoner being committed on a charge for which he might be tried at the Sessions. Cornwall v. R., 33 Q. B. (Ont.), 106.

The purpose of the statute was not to compel the Judge to try the prisoner upon any charge he was confined upon, in the language of that charge, but to try him on that charge in any form in which the charge could properly be laid against him. But it was never intended that the prisoner, if he were committed on a charge of larceny, should be tried for manslaughter by the Judge, nor if he were in for an assault that he should be tried for larceny, nor if he were in for arson that he should be tried for burglary. But on the other hand, it was never intended that if the prisoner were committed for trial for stealing the goods of A, that the same goods should not be described in another count, if it were necessary to do so, as the goods of B, nor if he were in on a charge of larceny, that he should not also be tried for feloniously receiving the same goods, nor if he were in on a charge for unlawfully and maliciously wounding with intent to maim, that he should not be tried on another count for the same wounding with intent to do some grievous bodily harm. So it would seem also in those cases in which a jury could acquit of the felony and convict of a misdemeanor or of an assault, or could acquit of the offence charged, if it were not completed,.and convict the prisoner of an attempt to commit it, the Judge might under the statute do the same thing. Ib. 119, 120.

The record will be properly framed, if it states the offence charged in such form as the depositions or evidence show, that it should have been laid, and the Judge is not to call for the warrant of commitment to find out what offence the prisoner is charged with, but he is to obtain "the depositions on which the prisoner was committed," and he is to state to the prisoner the offence with which he is there charged.

Where the Judge has appointed a day for trial under the 4th section, and the prisoner on being brought up before the Judge on the appointed day, declares his readiness to proceed, the Judge has nevertheless power on the application of the counsel for the Crown to adjourn the trial to a subsequent day, and the

record is not objectionable in failing to mention the cause of adjournment. Cornwall v. R., 33 Q. B. (Ont.), 106.

The Judge has also power to amend the record by changing the name of the prisoner; in the case in question, Rufus Bratton was changed to James Rufus Bratton (ib.).

A record which follows the form provided by the statute is sufficient, although the special jurisdiction conferred by the Act is not shewn. The notice from the sheriff under section 2 need only shew the nature of the charge against the prisoner, and need not charge the different offences of which the prisoner is tried as in the counts of an indictment (ib.).

5. The Judge sitting on any such trial for all the purposes thereof and proceedings connected therewith or relating thereto, is hereby constituted a Court of Record, and the record in any such case shall be filed among the records of the Court of General Sessions of the Peace, as indictments are, and as part of such records.

6. Any witness, whether on behalf of the prisoner or against him, duly summoned or subpoenaed to attend and give evidence before such Judge sitting on any such trial on the day appointed for the same, shall be bound to attend, and remain in attendance throughout the whole trial, and in case he fails so to attend he shall be held guilty of contempt of Court, and he may be proceeded against therefor accordingly.

7. Upon proof to the satisfaction of the Judge of the service of subpoena upon any witness who fails to attend before him as required by such subpoena, and such Judge being satisfied that the presence of such witness before him is indispensable to the ends of justice, he may by his warrant cause the said witness to be apprehended, and forthwith brought before him to give evidence as required by such subpoena, and to answer for his disregard of the same, and such witness may be detained on such warrant before the said Judge or in the Cominon Gaol, with a view to secure his presence as a witness; or in the discretion of the Judge, such witness may be released on recognizance with or without sureties conditioned for his appearance to give evidence as therein mentioned, and to answer for his default in not attending upon the said subpoena as for a contempt; the Judge may in a summary manner examine into and dispose of the charge of contempt against the said witness, who if found guilty thereof may be fined or imprisoned, or both, such fine not to exceed one hundred dollars, and such imprisonment to be in the Common Gaol, with or without hard labour, and not to exceed the term of ninety days; the said warrant may be in the Form "C," and the conviction for contempt in

the Form "D" to this Act, and shall be authority to the persons and officers therein required to act, to do as therein they are respectively directed.

8. All the powers and duties hereby conferred and imposed upon the Judge, shall be exercised and performed in the Province of Ontario by any County Judge, junior or Deputy Judge, authorized to act as Chairman of the General Sessions of the Peace; and in the Province of Quebec in any District wherein there is a Judge of the Sessions, by such Judge of Sessions, and in any District wherein there is no Judge of Sessions but wherein there is a District Magistrate, by such District Magistrate, and in any District wherein there is neither a Judge of Sessions nor a District Magistrate, by the Sheriff of such District.

9. This Act shall apply only to the Provinces of Ontario and Quebec.

This section does not prevent the application of the Act in the Province of Manitoba and the District of Algoma (see ante, p... 216), the Acts so extending it being subsequent to this Act.

Any Judge, Junior Judge, or Deputy Judge, trying any person under the said Act in the Province of Ontario may, in his discretion, reserve any question of law arising on such trial, for the consideration of the Justices of one of Her Majesty's Superior Courts of Common Law of the said Province, in the same manner and to the same extent as may be done by the Court of General Sessions of the Peace under chapter one hundred and twelve of the Consolidated Statutes for Upper Canada, and the said last named Act shall form and be taken and read as part of the said Act in the title to this Act mentioned. (38 Vic., chap. 45, s. 1.)

The powers conferred and imposed upon the Judge to be exercised and performed under the Act cited in the title to this Act, with and after the consent of the person charged, may be exercised and performed, notwithstanding that the court before which but for such consent the said person would be triable for the offence charged, or the Grand Jury thereof, may then be in session. Ib. s. 2.

If one of two or more prisoners charged with the same offence demands a trial by jury, and the other or others consent to be tried by the Judge without a jury, the Judge in his discretion may remand the said prisoners to gaol to await trial in all respects as if the Act cited in the title (32 & 33 Vic., chap. 35) had not been passed. Ib. s. 3.