COMPELLING ATTENDANCE OF WITNESSES.

678. Upon proof to the satisfaction of the judge of the service of the subpoena upon any witness who fails to attend or remain in attendance, or upon its appearing that any witness at the preliminary examination has entered into a recognizance to appear at the trial, and has failed so to appear, and that the presence of such witness is material to the ends of justice, the judge may, by his warrant, cause such witness to be apprehended and forthwith brought before him to give evidence and to answer for his disregard of the subpoena; and such witness may be detained on such warrant before the judge or in the common gaol with a view to secure his presence as a witness, or, in the discretion of the judge, he may be released on a recogniz ance, with or without sureties, conditioned for his appearance to give evidence and to answer for his default in not attending or not remaining in attendance; and the judge may, in a summary manner, examine into and dispose of the charge against such witness, who, if he is found guilty thereof, shall be liable to a fine not exceeding one hundred dollars, or to imprisonment, with or without hard labour, for a term not exceeding ninety days or to both. R. S. C. c. 174, s. 211.

As to re-calling witnesses see R. v. Lamère, 8 L. C. J. 181; R. v. Jennings, 20 L. C. J. 291; 2 Taylor, Ev. par. 1331.

WITNESS OUT OF THE JURISDICTION.

679. If any witness in any criminal case cognizable by indictment in any court of criminal jurisdiction at any term, sessions or sittings of any court in any part of Canada, resides in any part thereof, not within the ordinary jurisdiction of the court before which such criminal case is cognizable, such court may issue a writ of subpoena, directed to such witness, in like manner as if such witness was resident within the jurisdiction of the court; and if such witness does not obey such writ of subpoena the court issuing the same may proceed against such witness for contempt or otherwise, or bind over such witness to appear at such days and times as are necessary, and upon default being made in such appearance may cause the recognizances of such witness to be estreated, and the amount thereof to be sued for and recovered by process of law, in like manner as if such witness was resident within the jurisdiction of the court. R. S. C. c. 174, s. 212.

WITNESS FROM GAOL OR PENITENTIARY.

680. When the attendance of any person confined in any prison in Canada, or upon the limits of any gaol, is required in any court of criminal jurisdiction in any case cognizable therein by indictment, the court before whom such prisoner is required to attend may, or any judge of such court, or of any superior court or county court. may, before or during any such term or sittings at which the attendance of such person is required, make an order upon the warden or gaoler of the prison, or upon the sheriff or other person having the custody of such prisoner, to deliver such prisoner to the person named in such order to receive him; and such person shall, at the time prescribed in such order, convey such prisoner to the place at which such person is required to attend, there to receive and, obey such further order as to the said court seems meet. R. S. C. c. 174. s. 213.

At common law writs of subpoena have no force beyond the jurisdictional limits of the court from which they issue, but, by the above clause, 679, any court of criminal jurisdiction in Canada may summon a witness from any other part of Canada, for instance, a criminal court in Quebec can summon a witness in Nova Scotia, or vice versa, and if the subpoena is not obeyed the court may proceed against the witness in like manner as if such witness were resident within the jurisdiction of the court. In England, 46 Geo. III. c. 92 contains a provision of the same nature. In criminal cases the witness is bound to attend even if he has not been tendered his expenses: 3 Russ. 575; Roscoe, Ev. 104.

Section 680 renders unnecessary, in criminal matters, the writ of habeas corpus ad testificandum. It seems to go very far, and might lead to serious consequences; it, for instance, authorizes a judge of the court of quarter sessions, or of the county court in any part of the Dominion, to order the removal of a prisoner from any other part of the Dominion. Moreover, this removal is not, as in England, to be made under the same care and custody as if the prisoner was brought under a writ of habeas corpus, and by the officer under whose custody the witness is, but by any other person named by the judge in his order, thereby, against all notions on the subject, releasing for a while a prisoner from the custody of his gaoler, who, of course, ceases, pro tempore, to be responsible for his safe keeping. The Imperial Act on the subject is the 16 & 17 V. c. 30, s. 9. statute does not expressly require it, an affidavit stating the place and cause of confinement of the witness, and further that his evidence is material, and that the party cannot, in his absence, safely proceed to trial, should be given in support of the application. And if the prisoner be confined at a great distance from the place of trial, the judge will, perhaps, require that the affidavit should point out in what manner his testimony is material: 2 Taylor, Ev. par. 1149.

Though our

The word "prison" includes any penitentiary, s. 3.

!

EVIDENCE OF PERSON ILL MAY BE TAKEN UNDER COMMISSION.

681. Whenever it is made to appear at the instance of the crown, or of the prisoner or defendant, to the satisfaction of a judge of a superior court, or a judge of a county court having criminal jurisdiction, that any person, who is dangerously ill, and who, in the opinion of some licensed medical practitioner, is not likely to recover from such illness, is able and willing to give material infor mation relating to any indictable offence, or relating to any person accused of any such offence, such judge may, by order under his hand, appoint a commis sioner to take in writing the statement on oath or affirmation of such person.

2. Such commissioner shall take such statement and shall subscribe the same and add thereto the names of the persons, if any, present at the taking thereof, and if the deposition relates to any indictable offence for which any accused person is already committed or bailed to appear for trial shall transmit the same, with the said addition, to the proper officer of the court at which such accused person is to be tried; and in every other case he shall transmit the same to the clerk of the peace of the county, division or city in which he has taken the same, or to such other officer as has charge of the records and proceedings of a superior court of criminal jurisdiction in such county, division or city, and such clerk of the peace or other officer shall preserve the same and file it of record, and upon order of the court or of a judge transmit the same to the proper officer of the court where the same shall be required to be used as evidence. R. S. C. c. 174, s. 220.

See s. 686, post.

PRESENCE OF PRISONER.

682. Whenever a prisoner in actual custody is served with, or receives, notice of an intention to take the statement mentioned in the last preceding section the judge who has appointed the commissioner may, by an order in writing, direct the officer or other person having the custody of the prisoner to convey him to the place mentioned in the said notice for the purpose of being present at the taking of the statement; and such officer or other person shall convey the prisoner accordingly, and the expenses of such conveyance shall be paid out of the funds applicable to the other expenses of the prison from which the prisoner has been conveyed. R. S. C. c. 174, s. 221.

See s. 686, post.

COMMISSION OUT OF CANADA.

683. Whenever it is made to appear, at the instance of the Crown, or of the prisoner or defendant, to the satisfaction of the judge of any superior court, or the judge of a county court having criminal jurisdiction, that any person who resides out of Canada is able to give material information relating to any indictable offence for which a prosecution is pending, or relating to any person accused of such offence, such judge may, by order under his hand, appoint s commissioner or commissioners to take the evidence, upon oath, of such

person.

2. Until otherwise provided by rules of court, the practice and procedure in connection with the appointment of commissioners under this section, the taking of depositions by such commissioners, and the certifying and return

thereof, and the use of such depositions as evidence at the trial, shall be, as nearly as practicable, the same as those which prevail in the respective courts in connection with the like matters in civil causes. 53 V. s. 37, s. 23.

Order for examination of witness out of jurisdiction under 53 V. c. 37, s. 23 should not provide that evidence so taken should be read before the grand jury: R. v. Chetwynd, 23 N. S. Rep. 332.

WHEN EVIDENCE MUST BE CORROBORATED,

684. No person accused of an offence under any of the hereunder mentioned sections shall be convicted upon the evidence of one witness, unless such witness is corroborated in some material particular by evidence implicating the accused :

(a) Treason, Part IV., section sixty-five;

(b) Perjury, Part X., section one hundred and forty-six ;

(c) Offences under Part XIII sections one hundred and eighty-one to one hundred and ninety inclusive;

(d) Procuring feigned marriage, Part XXII., section two hundred and seventy-seven;

(e) Forgery, Part XXXI., section four hundred and twenty-three.

Section 218, c. 174 R. S. C., as to evidence in cases of forgery, required corroboration only of an interested witness: see R. v. Rhodes, 22 O. R. 480.

EVIDENCE OF CHILD IN CERTAIN CASES.

685. Where, upon the hearing or trial of any charge for carnally knowing or attempting to carnally know a girl under fourteen or of any charge under section two hundred and fifty-nine for indecent assault, the girl in respect of whom the offence is charged to have been committed, or any other child of tender years who is tendered as a witness, does not, in the opinion of the court or justices, understand the nature of an oath, the evidence of such girl or other child of tender years may be received though not given upon oath if, in the opinion of the court or justices, as the case may be, such girl or other child of tender years is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.

2. But no person shall be liable to be convicted of the offence, unless the testimony admitted by virtue of this section, and given on behalf of the prosecution, is corroborated by some other material evidence in support thereof implicating the accused.

3. Any witness whose evidence is admitted under this section is liable to indictment and punishment for perjury in all respects as if he or she had been sworn. 53 V. c. 37, s. 13. 48-49 V. c. 69, s. 4 (Imp.).

See s. 25 of the Canada Evidence Act, 1893, 56 V. c. 31.

This provision applies to the trial of offences under ss. 259, 269, & 270, ante.

See R. v. Wealand, 16 Cox, 402, 20 Q. B. D. 827; ·R. v. Paul, 17 Cox, 111, 25 Q. B. D. 202; R. v. Pruntey, 16 Cox, 314. The evidence so given would be evidence to support any verdict allowed in virtue of s. 713, post, on an indictment for any of the offences provided for in ss. 259, 269 &-270. Held, in that sense, by Court of Queen's Bench, Montreal, May 26th, 1893, in R. v. Grantyers.

DEPOSITIONS TO BE READ IN EVIDENCE.

686. If the evidence of a sick person has been taken under commission as provided in section six hundred and eighty-one, and upon the trial of any offender for any offence to which the same relates, the person who made the statement is proved to be dead, or if it is proved that there is no reasonable probability that such person will ever be able to attend at the trial to give eridence, such statement may, upon the production of the judge's order appointing such commissioner, be read in evidence, either for or against the accused, without further proof thereof,-if the same purports to be signed by the com missioner by or before whom it purports to have been taken, and if it is proved to the satisfaction of the court that reasonable notice of the intention to take such statement was served upon the person (whether prosecutor or accused) against whom it is proposed to be read in evidence, and that such person or his counsel or solicitor had, or might have had, if he had chosen to be present, full opportunity of cross-examining the person who made the same. R. S. C. c. 174, s. 220.

See s. 681, ante.

The notice required by this section is a written notice. Whether it has been a reasonable notice, and whether the opportunity for cross-examination was sufficient or not, are questions for the judge at the trial: R. v. Shurmer, 16 Cox,

94.

DEPOSITIONS TO BE READ IN EVIDENCE.

687. If upon the trial of any accused person it is proved upon the oath or affirmation of any credible witness that any person whose deposition has been taken by a justice in the preliminary or other investigation of any charge is dead, or so ill as not to be able to travel, or is absent from Canada, and if it is also proved that such deposition was taken in the presence of the person accused, and that he, his counsel or solicitor, had a full opportunity of crossexamining the witness, then if the deposition purports to be signed by the jus. tice by or before whom the same purports to have been taken it shall be read as evidence in the prosecution without further proof thereof, unless it is proved that such deposition was not in fact signed by the justice purporting to have signed the same. R. S. C. c. 174, s. 222. 11-12 V. c. 43, s. 17, (Imp.).