Mr. DAVIES (P.E.I.)-The Grand Jury has the general power to enquire into all offences within the county, and make a short presentment to the Court on which the Attorney-General acts. Any one can go before them and say that such and such a crime has been committed.

Sir JOHN THOMPSON. — That is the theory; but my hon. friend will remember that by statute it is taken away in a great variety of cases, and it is taken away in all cases here unless there is an investigation before the Magistrate. This is to prevent malicious persons bringing an indictment.

Mr. DAVIES (P.E.I.)-It practically takes away the power of the Grand Jury to investigate and present to the Court.

Sir JOHN THOMPSON. Of course they have access to the Attorney General or the officer acting for him at all times.

Mr. MILLS (Bothwell).-I remember a case where a prisoner, who was to some extent insane, had his eye knocked out by the keeper, and the sheriff did not like to report against the keeper; but the matter was brought to the attention of the Court by the Grand Jury. In that case they named the party who committed the offence, but this section would prevent them naming the party.

Sir JOHN THOMPSON.-Yes, unless they have a bill of indictment; but they could very soon get one.

Mr. DAVIES (P.E.I.)-I am referring to the salutary powers the Grand Juries have hitherto possessed, with very great benefit to the public weal, and I fear very much that, by the way section 642 is worded, it will be withdrawn.

Sir JOHN THOMPSON.-It is not intended to be withdrawn. It is only intended to refer to the proceedings of the bill of indictment, and that is exactly the statute now.

Mr. LAURIER.--The contention of my hon. friend is that this section limits the jurisdiction of the Grand Jury simply to the finding of indictments and that they have no power to make any presentment except on indictments.

Mr. McLEOD.-The Judge always charges the Grand Jury that they have a right to enquire into matters in the county generally. They do not indict a man, but they present certain facts on which the Court acts. The question to my mind is, whether this clause does not take away that power.

Mr. DAVIES (P.E.I.)-I would suggest whether it would not be well to put in some proviso permitting the Grand Jury, under charge of the Judge, to exercise the duty of investigating matters within the county. There are gentlemen generally on the Grand Jury who take an interest in the public institutions, and at their inspection twice a year, any want of duty on the part of the officials or any improper treatment of the inmates, is brought under the notice of the Court by the Grand Jury with very salutary results. I am very jealous of

that jurisdiction of the Grand Jury being encroached upon or taken away.

Sir JOHN THOMPSON.—If these functions are found so salutary. I have no objection to drop the first part of section 642 altogether. (1)

On section 657.

Mr. DAVIES (P.E.I.)-I thought the hon. gentleman was going to introduce a clause in the Bill allowing a criminal to give evidence for himself.

Sir JOHN THOMPSON.-We have a separate Bill for that, because it relates not only to the Criminal Law but to all matters of evidence within our jurisdiction.

On section 660.

Mr. DAVIES (P.E.I.)-The old distinction between misdemeanour and felony being abolished, where will the prisoner sit during his trial?

Sir JOHN THOMPSON.—That is subject to the discretion of the judge. There is no provision in the law now as to where he shall sit, but the practice is to compel a man charged with felony to sit in the dock, and when charged with misdeameanour he may sit elsewhere; the distinction is purely arbitrary.

Mr. LAURIER.-What about bail?

Sir JOHN THOMPSON.-When committed for trial for offences for which he is liable to a certain extent of punishment, the bail will be in the discretion of a judge.

On section 666. (2)

Mr. DAVIES (P.E.I.)—There are reasons for challenging the panel in the common law which you have not introduced here; for instance, close relations with the sheriff.

Sir JOHN THOMPSON.-The word "partiality" would cover that. It is better to say "partiality" than "relationship", because if you say "relationship" you have to go into the degrees.

Mr. LAURIER-At the present time it seems that there is very little in the objection of relationship.

Mr. DAVIES (P.E.I.)-I have seen several panels quashed on account of the relationship of the sheriff with the prosecution.

Mr. McLEOD.—I think "partiality" would cover that.

Mr. CHOQUETTE.—I should like to be informed why French Canadians in Ontario should not have a jury composed in part of French-Canadians?

(1) The portion thus dropped was as follows: "After the commencement of this Act, no Grand Jury shall present that any one has committed an indictable offence, except upon a bill of indictment duly sent before them."

(2) See comments and authorities at pp. 626, 627, anle.

Sir JOHN THOMPSON.-We formerly had that provision in all the provinces at common law, not only for the people in the localities but for foreigners coming there, Spaniards, French and all others. It was not uncommon to see a trial take place in that way. That system has, however, been abolished for a number of years. Ás regards the people of our own country, if there are many Frenchspeaking inhabitants, for instance, in the locality in which a prisoner is tried, there will be, in all probability some of his fellow countrymen on the jury. There is ample provision made for the work of interpreting, and if a fair trial cannot be had, a change of venue may be secured.

Mr. CHOQUETTE.-It is not a question of fair trial. The rovision with respect to German or Spaniards is correct, they being foreigners coming into the Dominion; but as regards Ontario, where there are a large number of French Canadians, I do not see why they should not possess the same right as the English-speaking people in Quebec.

Sir JOHN THOMPSON.—In the Province of Quebec the dual system prevails, and the prisoner is tried in both languages. In the other provinces the prisoner is tried in the English language, and there would be no practical utility in having a mixed jury.

On section 667.

Mr. DAVIES (P. E. I.)-In sub-section 5, you have adopted a change in practice in regard to Jurors. Heretofore, in misdemeanours, the Jury were allowed to disperse during the trial when the Court adjourned for the day and were not confined; but under this Act, you keep all Jurors empannelled, together, until the trial is over, whether for felony or misdemeanour.

SirJOHN THOMPSON.―That is not the intention; it means the names of the men and not the men themselves. It is just as at present, when we keep the names of the panel tied up together.

On section 671.

Mr. DAVIES (P. E. I.)-Is there any special provision taking away the right of election to be tried separately?

Sir JOHN THOMPSON.-It is in the discretion of the Court. They always endeavour to be tried separately. In defending prisoners I have tried very hard to get it done, but of late years it is never done with us. Nearly every application is refused.

On section 675, (1)

(1) The provision here discussed, as "section 675," appears to have been dropped from the Code. From the tenor of the discussion it was evidently a provision identical with section 525 of the English Draft Code, which section is in the following words:

"If the Court is of opinion that the accused is taken by surprise in a manner likely to be prejudicial to his defence by the production on behalf of the prose cutor of a witness who has not made any deposition, and of the intention to

D

Sir JOHN THOMPSON.-This is a very important change. At present after the Jury is once formed, the trial must proceed to a finish; but this section allows the Jury to be broken up and the trial adjourned to a future day just as a civil case may be, according as Justice may seem to require. The commitee considered it very carefully, as it is highly important.

Mr. OUIMET.-I should think it very wise.

Mr. DAVIES (P. E. I.)-If the trial proceeds for a couple of days, and the prisoner finds himself in a tight place, he may make affidavits that he has been taken entirely by surprise, and the whole case goes by the board after enormous expense has been incurred, and it would have to be begun again, perhaps at a time when the Crown witnesses could not be secured. I cannot recall any case in my practice in which any injustice has resulted from the rule that, after the Jury is sworn and the case begun, it must continue to the end.

Mr. MASSON. We know that in civil cases, even when we have pleadings prepared long before the trial, surprises often occur, and occasionally they are such that the Court will grant an adjournment after the trial has commenced. If it is necessary in civil cases, where only matters of dollars and cents are in question, how much more important is it that it should be granted in the case of criminal matters where a man's life or liberty is at stake.

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Mr. DAVIES (P. E. I.)-This section does not only provide for an adjournment but for an absolute discharge of the Jury and a postponement of the trial.

Mr. MASSON.—An adjournment for two or three days might not be sufficient, and we cannot keep the Jury there for ever or cause them to return at a distant day. It is better they should be discharged and the trial commenced de novo than that they should be kept waiting for a long time.

Mr. TISDALE.-It strikes me the strongest argument in favour of this is our practice in criminal cases. The accused cannot get a new trial on errors of fact, and if it were not for that I should be inclined to oppose the clause, but that being so, it strikes me very favourably. I do not think we need fear to trust our Judges with the exercise of this discretion, and it will relieve the accused from the application of a very hard rule.

Sir JOHN THOMPSON.-My being candid and telling the com

produce whom the accused has not had sufficient notice, the Court may, on the application of the accused, adjourn the further hearing of the case, or discharge the Jury from giving a verdict, and postpone the trial.

"If the Court is of opinion that any witness who is not called for the prosecution ought to be so called, it may require the prosecutor to call him, and if the witness is not in attendance, make an order that his attendance shall be procured, and the Court may if it thinks proper adjourn the further hearing of the case to some other time during the sittings until such witness attends.

"If in such a case the Court is of opinion that it would be conducive to the ends of Justice to do so, it may upon the application of the accused discharge the Jury and postpone the trial.”

mittee my views, will not prejudice anybody against the clause, considering the fair way in which the provisions have been received throughout; and I hope I will not be suspected of not having done my duty to the joint committee when I state I have some doubts about the clause. My experience is that the prisoner always makes a desperate effort to get a postponement, if he finds an unfavourable Jury or the evidence against him stronger than he expected. I am afraid this would tend to break up the trial in every case in which the prisoner feels he is getting the worst of it, and in that way might lead to considerable abuse. Considering the many avenues of escape we leave open to the prisoner, and the difficulty of securing conviction, I feel a little doubt about so radical a change. Its strength lies in theory, and in the fact likewise that it has been recommended in the English draft Bill.

Mr. CHAPLEAU.-I must say that my experience of 14 or 15 years in criminal trials leads me to consider this clause as objectionable; as it would lead to endless difficulties and tend, in many cases, to defeat the ends of justice. The prisoners, and especially their lawyers, are very ingenious in finding means to postpone the trial. When a case is fixed for trial, the prisoner has had all the opportunities, under our very liberal system of criminal law, for finding out what the case really is, and what witnesses are called and to be called. If we are able to boast of the administration of criminal justice in our country, it is because trials are carried on not only with liberality, but with firmness and celerity, and there is no avenue open to the undue protraction of trials.

Mr. OUIMET.-This section provides for two cases; the first one is when a witness is produced by the Crown who has not been heard in the preliminary investigation; the second clause applies to the case of a witness who has been examined in the preliminary investigation, but who does not turn up or is not called by the Crown at the trial. No doubt, in respect to the first category, injustice might occur in very extreme cases, but still we have a right to suppose that the Crown would not do anything of that kind when they knew the accused to be taken by surprise in producing a new witness of whom the accused has never heard before. As to the second clause, there is certainly no reason at all why it should remain. In the case of a witness who has been heard, but is not to be found, the law provides that his deposition may be read in Court; and, as the accused had had an opportunity in the preliminary investigation to cross-examine him, he can complain of no injustice in not having a second chance to cross-examine him. As to the first class of cases, I would frame the section so as to make it appear that in the intention of the Legislature the clause would only apply to such cases as when the Judge himself would see that a glaring injustice would result from the fact that a witness had been suddenly called up, of whom the accused knew nothing.

Mr. McLEOD.—A case might arise where a witness is produced by the prosecution without any previous notice, and the defence so taken by surprise be utterly unable at the moment, to meet his