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to find a true bill. The Judge granted the application, and stated that the grand jury were not bound by any rules of evidence, and were a secret tribunal and might lay by the heels and put in jail the most powerful man in the county by finding a true bill against him and for that purpose might even read a paragraph in a newspaper.

Reg. v. Wilson (1874), 12 Cox 622: before Lush, J. Upon evidence being given of illness, and her inability to attend, presence of the accused and opportunity to cross examine being proved, the depositions were read to the grand jury.

Reg. v. Gerrans (1876), 13 Cox 158, Hampshire Spring Assizes, Denman, J.: The prosecution applied that the depositions of one of the witnesses in the case might be sent to the grand jury upon presentation of a bill, such witness being unable to attend in consequence of illness, and the prosecuting counsel stated that he was ready to prove such illness, and that the depositions were duly taken in conformity with sec. 17 of 11 & 12 Vict. ch. 42.

Denman, J., said, "I don't think you need do so," and upon the prosecution saying it was usual, the Judge said, "I think it is unnecessary; the grand jury are entitled to look at and act upon the depositions."

Reg. v. Howse (1886), 1 B. C. R. 307, under 32 & 33 Vict. (D.), at the Victoria Fall Assizes, Crease, J., referring to Reg. v. Bullard, 12 Cox 353, Reg. v. Gerrans, 13 Cox 158: On request of the foreman of the grand jury for depositions of an absent witness, without whose evidence the grand jury had no material on which to find a bill, granted the application (as far as appears from the report) without any preliminary proof of the cause of absence of the witness or the regularity of the taking of the depositions.

In Rex v. Bellanger (1902), 6 Can. C. C. 295, a judgment of the Court of King's Bench, Appeal side, Province of Quebec, Wurtele, J., said: "Depositions at a preliminary inquiry can only be read to the grand jury in cases where such depositions can be used as evidence before a petit jury and read to it."

Of the foregoing decisions it may be noted that all except Reg. v. Clements, 15 Jur. 407, 5 Cox 191, and Rex v. Bellanger, 6 Can. C. C. 295, are nisi prius decisions given y the Judges delivering them off hand and without considering

previous cases. In Reg. v. Clements the Court had doubt of its jurisdiction, while Rex v. Bellanger is not binding on the Courts of this Province. That most of the nisi prius decisions where they allege reasons at all for the grand jury's right to look at the depositions, think so because the grand jury were then entitled to prefer and find a true bill on their own knowledge, and as this has ceased to be the law since the enactment of sec. 641 of the Code, now R. S. C. 1906 cap. 146, secs. 870, 871, 872 and 873, their authority is something more than doubtful.

The sections regulating procedure before grand juries in R. S. C. 1906 ch. 146, and so classed, are secs. 874 to 878 inclusive, and are word for word the provisions of 20 Vict. ch. 4, secs. 2 and 3.

874. It shall not be necessary to swear witnesses in open Court.

875. Enables foreman of grand jury to administer oath. 876. Names of witnesses shall be endorsed on indictment, and that foreman shall write his initials against the name of each witness sworn.

877. Names of witnesses shall be submitted to grand jury by Crown counsel, and these and no others shall be examined by or before such grand jury unless upon the written order of the presiding Judge.

Reading these provisions in the order reversed to that in which they appear, we find

(1) That the names of all witnesses are to be submitted by Crown counsel: sec. 877.

(2) That these and no others are to be examined, unless under the written order of the presiding Judge: sec. 877.

(3) That the mode of submitting names is by indorsing them on the indictment: sec. 876.

(4) That as each witness is sworn (and apparently each witness examined is to be sworn) the foreman shall place his initials against the name of each witness sworn: sec. 876.

These sections would seem to contemplate the hearing only of testimony of witnesses sworn before the grand jury—unless it is provided elsewhere that other testimony may be heard.

Sections 995, 996 and 997 enable a commission to issue at the instance of the Crown or the accused, where there is danger of the loss of evidences from sickness, death or ab

sence, and provides for the preservation of this evidence, and the evident intention of these sections is that this evidence may come before the grand jury if the Crown so desires.

From the grouping of section 999 under "Proceedings at Trial," and from the wording of the section, it would appear as if the evidence at a former trial, and the depositions taken before the magistrate, were to be read only at the trial and not to the grand jury-unless the meaning of the word "Trial" is to be wholly changed. The section reads, "if it appears at the trial, etc.," Now, a trial does not commence until the pleadings are closed, and the issue ascertained. In a criminal prosecution the indictment is only a pleading which does not reach an issue until the defendant pleads in bar "not guilty." That is what the jury are sworn to try whether he be guilty or not guilty, viz., that is the trial.

So that the matter could not appear at the trial so as to assist in the finding of a true bill. If that was the intention the section should read, "if it appears in a criminal prosecution, etc."

The conclusions to be drawn are

(1) That the grand jury are not entitled to look at the depositions unless enabled by section 999.

(2) That where the circumstances detailed in sec. 999 exist and are proved, the right of the grand jury to look at the depositions is doubtful, and the better and safer course is to issue a commission under secs. 995, 996 and 997.

The question was argued by the writer before the Court of Appeal in Rex v. Lee (not reported), in February, 1907, but the verdict and sentence were set aside on other grounds. WM. STEERS.

Lindsay, March 12th.

VOL. XXVIII. C.L.T.R.-25

OATHS AND STATUTORY DECLARATIONS: WANT OF UNIFORMITY IN SCHEDULES TO ACTS AND DEPARTMENTAL DIRECTIONS AS TO PERSONS AUTHORIZED TO ADMINISTER.

this

day of

A.D.

There is a statute in the forefront of the Revised Statutes of Ontario, and also of the Revised Statutes of Canada, called the "Interpretation Act." It has been there since the first revisions (amended from time to time), and a most useful Act it is; yet many to whom it would be of service do not appear to be aware of it. According to published reports of proceedings at Osgoode Hall for unseating controllers a question arose as to the authority of the person before whom statutory declarations of qualification had been made. It appeared that such a declaration had been made before a commissioner. Counsel contended that it should have been before a Justice of the Peace, because in the schedule to the Municipal Act the formula-"Sworn (or affirmed) before me at signed, X. Y., Justice of the Peace," is set forth; and he is said to have considered that there was enough to base an argument upon. The result shewed that this was an error which he probably would not have fallen into had he consulted the Interpretation Act, R. S. O. ch. 1, sec. 8, sub-sec. 19, which is as follows: Where by an Act of the Legislature of this Province, or by a rule of the Legislative Assembly, or by an order, regulation, or commission made or issued by the LieutenantGovernor-in-Council, under a law authorizing him to require the taking of evidence under oath, an oath is authorized or directed to be made, taken, or administered, the oath may be administered, and a certificate of its having been made, taken, or administered may be given by any one named in the Act, rule, order, regulation or commission, or by a Judge of any Court, a Notary Public, Justice of the Peace or Commissioner for taking affidavits, having authority or jurisdiction in the place where the oath is administered." And the word "oath" or "affidavit" is to include "declaration” and

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"affirmation.”

For years before this wise and comprehensive provision was made law stationers had got into the habit of printing at the foot of every jurat the words " A commissioner for

taking affidavits," etc. Now some of them very sensibly leave it blank, as in forms appended to the Judicature Act. Others print the words—“ Person authorized to administer oaths," in parentheses; leaving such person to insert the proper addition. But the remarkable thing is that in new Acts of Parliament and of the Legislature, and in Departmental forms, the draftsman continues to insert sometimes-“ A Commissioner," sometimes a "Justice of the Peace." In one of the forms under the Free Grants and Homesteads Act a note is appended thus:-"NOTE: These affidavits may be sworn before any Crown Land Agent, a Justice of the Peace, or a Commissioner for taking Affidavits." Why are not all the several persons named in the Interpretation Act (not very numerous) given for the information cf officials or any parties interested? In a form headed-" Affidavit as to timber cut on special lots,"-the words " Commissioner in B.R., etc.," appear under the printed jurat. This form as a swearing implement is peculiar, inasmuch as it begins with the words—“ Do solemnly swear" (not make oath and say, as is usual), as though the draftsman had some indistinct recollection of the form prescribed by the Extra-judicial Oaths Act (now embodied in The Canada Evidence Act), for a Statutory Declaration. As, however, the words "So Help Me God" are printed at the foot of the affidavit to be subscribed by the deponent, it is quite evident that it is not only an affidavit, but one of the strongest kind. There is also much looseness in affidavits and declarations used by some insurance companies, both fire and life, by reason of which, if a prosecution for perjury should arise, it might be impossible to sustain a conviction.

The instances given are only a selection. Many others might be given. It would be well, I submit, if some government official with legal knowledge were given the supervision of these matters with a view to bring about certainty, accuracy, and uniformity in the administering of oaths and the taking of statutory declarations, and other matters of detail. connected therewith.

Huntsville, March, 1908.

A. HOWELL.

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