584. Procuring attendance of witnesses beyond the province.If there is reason to believe that any person residing anywhere in Canada out of the province and not being within the province, is likely to give material evidence either for the prosecution or for the accused, any judge of a Superior Court or a County Court, on application therefor by the informant or complainant, or the AttorneyGeneral, or by the accused person or his solicitor or some person authorized by the accused, may cause a writ of subpoena to be issued under the seal of the court of which he is a judge, requiring such person to appear before the justice before whom the inquiry is being held or is intended to be held at a time and place mentioned therein to give evidence respecting the charge and to bring with him any documents in his possession or under his control relating thereto.

2. Such subpoena shall be served personally upon the person to whom it is directed and an affidavit of such service by a person effecting the same purporting to be made before a justice of the peace, shall be sufficient proof thereof.

3. If the person served with a subpoena as provided by this section, does not appear at the time and place specified therein, and no just excuse is offered for his non-appearance, the justice holding the inquiry, after proof upon oath that the subpoena has been served, may issue a warrant under his hand directed to any constable or peace officer of the district, county or place where such person is, or to all constables or peace officers in such district, county or place, directing them or any of them to arrest such person and bring him before the said justice or any other justice at a time and place mentioned in such warrant in order to testify as aforesaid.

4. The warrant may be in the FORM N in SCHEDULE ONE hereto (1) or to the like effect. If necessary, it may be endorsed in the manner provided by section five hundred and sixty-five, and executed in a district, county or place other than the one therein mentioned.

585. Commitment of a witness refusing to be examined.—Whenever any person appearing, either in obedience to a summons or subpoena, or by virtue of a warrant, or being present and being verbally required by the justice to give evidence, refuses to be sworn, or having been sworn, refuses to answer such questions as are put to him, or refuses or neglects to produce any documents which he is required to produce, or refuses to sign his depositions without in any such case offering any just excuse for such refusal, such justice may adjourn the proceedings for any period not exceeding eight clear days, and may in the meantime by warrant in FORM O in SCHEDULE ONE hereto, (2) or to the like effect, commit the person so refusing to gaol, unless, he sooner consents to do what is required of him. If such person, upon being brought up upon such adjourned hearing, again refuses to do what is so required of him, the justice, if he sees fit, may again adjourn the proceedings, and commit him for the like

(1) For form N, see p. 568, post. (2) For form O, see p. 569, post.

period, and so again from time to time until such person consents to do what is required of him.

2. Nothing in this section shall prevent such justice from sending any such case for trial, or otherwise disposing of the same in the meantime, according to any other sufficient evidence taken by him. R.S.C., c. 174, s. 63.

586. Discretionary powers of the justice.—A justice holding the preliminary inquiry may in his discretion:

(a.) permit or refuse permission to the prosecutor, his Counsel or Attorney to address him in support of the charge, either by way of opening or summing up the case, or by way of reply upon any evidence which may be produced by the person accused;

(b.) receive further evidence on the part of the prosecutor after hearing any evidence given on behalf of the accused;

(c.) adjourn the hearing of the matter from time to time, and change the place of hearing, if from the absence of witnesses, the inability of a witness who is ill to attend at the place where the justice usually sits, or from any other reasonable cause, it appears desirable to do so, and may remand the accused if required by warrant in the FORM P in SCHEDULE ONE hereto (1) Provided that no such remand shall be for more than eight clear days, the day following that on which the remand is made being counted as the first day; and further provided, that if the remand is for a time not exceeding three clear days, the justice may verbally order the constable or other person in whose custody the accused then is, or any other constable or person named by the justice in that behalf, to keep the accused person in his custody and to bring him before the same or such other justice as shall be there acting at the time appointed for continuing the examination; R.S.C., c. 174, s. 65.

(d.) order that no person other than the prosecutor and accused, their counsel and solicitor shall have access to or remain in the room or building in which the inquiry is held (which shall not be an open court), if it appears to him that the ends of justice will be best answered by so doing;

(e.) regulate the course of the inquiry in any way which may appear to him desirable, and which is not inconsistent with the provisions of this Act.

587. Bail on remand.—If the accused is remanded under the next preceding section the justice may discharge him, upon his entering into a recognizance in the FORM Q in SCHEDULE ONE hereto, (2) with or without sureties in the discretion of the justice, conditioned for his appearance at the time and place appointed for the continuance of the examination. R.S.C., c. 174, s. 67.

(1) For form P, see p. 570, post.

(2) or form Q, see p. 571, post.

588. Hearing may be ordered to proceed during time of remand.— The justice may order the accused person to be brought before him, or before any other justice for the same territorial division, at any time before the expiration of the time for which such person has been remanded, and the gaoler or officer in whose custody he then is shall duly obey such order. R.S.C., c. 174, s. 66.

589. Breach of recognizance on remand,—If the accused person does not afterwards appear at the time and place mentioned in the recognizance the said justice, or any other justice who is then and there present, having certified upon the back of the recognizance the non-appearance of such accused person, in the FORM R in SCHEDULE ONE hereto, (1) may transmit the recognizance to the clerk of the court where the accused person is to be tried, or other proper officer appointed by law, to be proceeded upon in like manner as other recognizances; and such certificate shall be primâ facie evidence of the non-appearance of the accused person. R.S.C., c. 174, s. 68.

590. Evidence for the prosecution. When the accused is before a justice holding an inquiry, such justice shall take the evidence of the witnesses called on the part of the prosecution.

2. The evidence of the said witnesses shall be given upon oath and in the presence of the accused; and the accused, his counsel or solicitor, shall be entitled to cross-examine them.

3. The evidence of each witness shall be taken down in writing in the form of a deposition, which may be in the FORM S in SCHEDULE ONE hereto, (2) or to the like effect.

4. Such deposition shall, at some time before the accused is called on for his defence, be read over to and signed by the witness and the justice, the accused, the witness and justice being all present together at the time of such reading and signing.

5. The signature of the justice may either be at the end of the deposition of each witness, or at the end of several or of all the depositions in such a form as to show that the signature is meant to authenticate each separate deposition.

6. Every justice holding a preliminary inquiry is hereby required to cause the depositions to be written in a legible hand and on one side only of each sheet of paper on which they are written. R.S.C., c. 174, s. 69.

7. Provided that the evidence upon such inquiry or any part of the same may be taken in shorthand by a stenographer who may be appointed by the justice and who before acting shall make oath that he shall truly and faithfully report the evidence; and where evidence is so taken, it shall not be necessary that such evidence be read over to or signed by the witness, but it shall be sufficient if the transcript

(1) For form R, see p. 571, post.

(2) For form S, see p. 572, post.

be signed by the justice and be accompanied by an affidavit of the stenographer that it is a true report of the evidence.

591. Evidence to be read to the accused.-After the examination of the witnesses produced on the part of the prosecution has been completed, and after the depositions have been signed as aforesaid, the justice unless he discharges the accused person, shall ask him whether he wishes the depositions to be read again, and unless the accused dispenses therewith shall read or cause them to be read again. When the depositions have been again read, or the reading dispensed with, the accused shall be addressed by the justice in these words, or to the like effect:

"Having heard the evidence, do you wish to say anything in answer to the charge? You are not bound to say anything, but whatever you do say will be taken down in writing and may be given in evidence against you at your trial. You must clearly understand that you have nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to you to induce you to make any admission or confession of guilt, but whatever you now say may be given in evidence against you upon your trial notwithstanding such promise or threat."

2. Whatever the accused then says in answer thereto shall be taken down in writing in the FORM Tin SCHEDULE ONE hereto, (1) or to the like effect, and shall be signed by the justice and kept with the depositions of the witnesses and dealt with as hereinafter mentioned. R.S.C., c. 174, ss. 70 and 71.

As to proof of the Statement at the Trial see article 689, post.

592. Evidence of confession or admission.—Nothing herein contained shall prevent any prosecutor from giving in evidence any admission or confession, or other statement, made at any time by the person accused or charged, which by law would be admissible as evidence against him. R.S.C., c. 174, s. 72.

Confessions are received in evidence or rejected under a consideration of whether they are or are not entitled to credit.

A free and voluntary confession of guilt made by a prisoner, either in course of conversation with private individuals, or under examination before a magistrate is admissible in evidence as perfectly legal and sufficient. (2)

A confession in order to be admissible must not be extracted by any sort of threats or violence nor be obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence, but be entirely free and voluntary; and in the case of a confession before a magistrate or other person, unless it be shewn affirmatively on the part of the prosecution that it was made without the defendant being induced to make it by any promise of favor, or by menaces or undue terror, it is not admissible in evidence against him,

A confession forced from the accused by the flattery of hope or the torture of fear comes in so questionable a shape, when it is to be considered as the

(1) For Form T, see p. 572, post.

(2) Gilb. Ev. 123; Lambe's case, 2 Leach, 252; Wheeling's case, | Leach, 311; R. v. Eldridge, R. & R., C. C. R. 440.

evidence of guilt that no reliance can be placed in it and no credit should be given to it.

Three men were tried and convicted of the murder of a Mr. Harrison. One of them under promise of pardon confessed himself guilty of the fact. The confession therefore was not given in evidence against him; and a few years afterwards it turned out that Mr. Harrison was alive. (1)

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If it be said to the defendant that it will be better or worse for him if he do or do not confess; (2) or if a confession be procured by a threat to take the defendant before a magistrate, if he do not give a more satisfactory account ;(3) or to send for a constable for that purpose; (4) or by saying, Tell me where the things are, and I will be favorable to you; (5) or, "You had better tell all you know:” (said by the surgeon to a woman suspected of poisoning ; (6) or, "You had better tell where you got the property;" (7), or, “You had better split, and not suffer for all of them;" (8), or. “ It would have been better if you had told at first;" (9), or, " I should be obliged to you if you would tell us what you know about it: if you will not, of course, we can do nothing; (10), or, " It will be best for you if you will tell how it was transacted; " (11), or, " It might be better for you to tell the truth, and not a lie;" or (12), " You had better tell the truth; it may be better for you; " (13), the confession will not be admissible.

Where the prosecutor asked the defendant or the money which he had taken ; and, before it was produced, said, "I only want my money, and if you give me that, you may go to the devil if you please," upon which the defendant took part of the money from his pocket, and said that was all he had left, a majority of the judges held that the evidence was inadmissible. (14)

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Where a constable said to the prisoner who was suspected of the murder of her child that, if she did not tell him where it was she might get herself into trouble, and that it would be the worse for her," a statement thereupon made by her to the constable was rejected. (15)

A statement, made to a constable, after he had told the defendant the nature of the charge against him, and that he need not say anything to criminate himself, but that whatever he might say would be taken down and used as evidence against him, was held to be admissible. (16)

A made to B. a confession which was inadmissible in evidence in consequence of its having been made after a promise held out by B. The latter, shortly after the confession so made to her, sent for and informed C., a neighbor, who then had an interview alone with A., and asked her questions upon the subject, but he held out no inducements, and A. then made a confession to C. Held

(1) 2 Hale, 285; R. v. Warringham, 2 Den. 447; Warwickshall's case, I Leach, 263.

(2) 2 East, P. C. 659.

(3) R. v. Thompson, I Leach 291.

(4) R. v. Richards, 5 C. & P. 318; R. v. Hearn, C. & Mar. 109.

(5) R. v. Cass, 1 Leach, 293.

(6) R. v. Kingston 4 C. & P. 387.
(7) R. v. Dun 4 C & P. 543.
(8) R. v. Thomas, 6 C. & P. 353.
(9) R. v. Walkley, 6 C. & P. 175.
(10) R. v. Partridge. 7 C. & P. 551.
(1) R. v. Warringham, supra.
(12) R, v. Bate, 11 Cox. 686.

(13) R. v. Fennell, 7 Q. B. D. 147; 50 L. J. (M. C.) 126.

(14) R. v. Jones, R. & R. 152; R. v. Parratt, 4 C. & P. 570.

(15) R. v. Coley, 10 Cox, 536.

(16) R. v. Baldry. 2 Den. 430; 21 L. J. (M. C.), 130; R. v. Farley, 1 Cox, 76; R. v. Harris, 1 Cox, 106.