^*?>^.
IMAGE EVALUATION
TEST TARGET (MT-3)
/.
.>^ €P.
>" W^ "
V
<; %
%
#
'p-
y.
V.
u.
1.0
I.I
22
2,0
llllli^
(;4
1.8
1.25
1.4 1.6
■* 6"
►
%
<^^
/#
^m
'^A
e.
<?),
'C/i
■^i' -s-
^.
/
/A
Photographic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, N.Y. 14580
(716) 872-4503
CSHM/ICMH
Microfiche
Series.
CIHM/ICMH
Collection de
microfiches.
Canadian Institute for Historical Microreproductions Institut Canadian de microreproductions historiques
1980
Technical and Bibliographic Notes/Notes techniques et bibliographiques
The Institute has attempted to obtain the best
original copy available for filming. Features of this
copy which may be bibliographically unique,
which may alter any of the images in the
reproduction, or which may significantly change
the usual method of filming, are checked below.
L'Institut a microfilm^ le meilleur exemplaire
qu'il lui a dtd possible de se procurer. Les details
de cet exemplaire qui sont peut-dtre uniques du
point de vue bibliographique, qui peuvent modifier
une image reproduite, ou qui peuvent exiger une
modification dans la mdthode normale de filmage
sont indiquds ci-dessous.
13
Coloured covers/
Couverture de couleur
□ Coloured pages/
Pages de couleur
D
Covers damaged/
Couverture endommagde
□ Pages damaged/
Pages endommag^es
n
Covers restored and/or laminated/
Couverture restaurde et/ou pelliculde
□ Pages restored and/or laminated/
Pages restaurdes et/ou pellicul6es
n
Cover title missing/
Le titre de couverture manque
Pages discoloured, stained or foxed/
Pages d^colordes, tachet^es ou piqu^es
D
Coloured maps/
Cartes g^ographiques en couleur
□ Pages detached/
Pages d^tach^es
D
Coloured ink (i.e. other than blue or black)/
Encre de couleur (i.e. autre que bleue ou noire)
□ Showthrough/
Transparence
n
Coloured plates and/or illustrations/
Planches et/ou illustrations en couleur
n Quality of print varies/
Quality in^gale de I'impression
D
Bound with other material/
Relid avec d'autres documents
□ Includes supplementary material/
Comprend du materiel supplementaire
D
D
Tight binding may cause shadows or distortion
along interior margin/
La reliure serr^e peut causer de I'ombre ou de la
distortion le long de la marge int^rieure
Blank leaves added during restoration may
appear within the text. Whenever possible, these
have been omitted from filming/
II se peut que certaines pages blanches ajout6es
lors d'une restauration apparaissent dans ie texte,
mais, lorsque cela 6tait possible, ces pages n'ont
pas 6t6 film^es.
I — I Only edition available/
D
Seule Edition disponible
Pages wholly or partially obscured by errata
slips, tissues, etc., have been refilmed to
ensure the best possible image/
Les pages totalement ou partiellement
obscurcies par un feuillet d'erratR, une pelure.
etc., ont 6t6 film6es d nouveau de fapon d
obtenir la moilleure image possible.
□
Additional comments:/
Commentaires suppl6mentaires;
This item is filmed at the reduction ratio checked below/
Ce document est film6 au taux de reduction indiqu6 ci-dessous.
10X
14X
18X
22X
26X
30X
12X
16X
20X
24X
28X
32X
The copy filmed here has been reproduced thanks
to the generosity of:
National Library of Canada
L'exemplaire filmd fut reproduit grdce d la
g6n6rositd de:
Bibliothdque nationale du Canada
The images appearing here are the best quality
possible considering the condition and legibility
of the original copy and in keeping with the
filming contract specifications.
Original copies in printed paper covers are filmed
beginning with the frcnt cover and ending on
the last page with a printed or illustrated impres-
sion, or the back cover when appropriate. All
other original copies are filmed beginning on the
first page with a printed or illustrated impres-
sion, and ending on the last page with a printed
or illustrated impression.
Les images suivantes ont 6t6 reproduites avoc le
plus grand soin, compte tenu de la condition et
de la nettet6 de l'exemplaire film§, et en
conformity avec les conditions du contrat de
filmage.
Les exemplaires originaux dont la couverture en
papier est imprim^e sont film^s en commengant
par le premier plat et en terminant soit par la
dernidre page qui comporte une empreinte
d'impression ou d'illustration, soit par le second
plat, selon le cas. Tous les autres exemplaires
originaux sont filmds en commenpant par la
premidre page qui comporte une empreinte
d'impression ou d'illustration et en terminant par
la dernidre page qui comporte une telle
empreinte.
The last recorded frame on each microfiche
shall contain the symbol — ^ (meaning "CON-
TINUED "), or the symbol V (meaning "END ").
whichever applies.
Un des symboles suivants apparaitra sui- la
dernidre image de cheque microfiche, selon le
cas: le symbole — »- signifie "A SUIVRE", le
symbcle V signifie "FIN".
Maps, plates, charts, etc., may be filmed at
different reduction ratios. Those too large to be
entirely included in one exposure are filmed
beginning in the upper left hand corner, left to
right and top to bottom, as many frames as
required. The following diagrams illustrate the
method:
Les cartes, planches, tableaux, etc., peuvent §tre
filmds & des taux de reduction diffdrents.
Lorsque le document est trop grand pour etre
reproduit en un seul clich6, il est film6 i partir
de Tangle sup^rieur gauche, de gauche d droite,
et de haut en bas, en prenant le nombre
d'images n^cessaire. Les diagrammes suivants
illustrent la mdthode.
1
2
3
1
2
3
4
5
6
r
i
■jr=ir=Jr=-l^
-Jrz=Ji==Jr=^ n= ]r=J n=Jr=]r.
a
HOW SAY YOU ? ''
A Review of the Movement for Abolishing the
Grand Jury Syste
IN CANADA
BY
John Alexander Kains
OF OSGOODB HALL, BARRISTER-AT-LAW
THE JOURNAL, ST. THOMAS
1893
^l ~jr=Jr=Jr.
1
l!
I
^■■p
■■■I
mm
m
f
I
}
/
" HOW SAY YOU ? '
^^ A Review of the Movement for Abolishing the
Grand Jury System
IN CANADA
BY
John Alexander Kains
OK OSGOOOE HAI.L, BARRISTER-AT-I.AW
THE JOURNAL, ST. THOMAS
1893
TO THE HONOP^BLE
5irJol?9josepl? Qaldu/ell /Abbott, K- ^. C^- Q-
AND
TO THE HONORABLE
SirJol?9 5. D. Tfompso^, \{. (;. m. Q.
77^1? Premier and Minister of Justice, respetti7;ely, of the
Dominion of Canada,
THIS COMPILATION
/;/ recognition of their distinguished talents and ability,
tespect fully inscribed.
TABLE OF CONTENTS.
Preface
The lieginning of the End
A Short Account of the l':arly Stages of the Movement for Abolishing the
(hand Jury in Canada
Senator Oowan's Efforts in the Direction ot Abolishing the System
Opinions of Sir John Abbott, Sir John Thompson and otiiers
A Short Review of tlic Opinions ai\(l Criticisms of those Judges who
Oppose Abolition . .
Extracts from the Opinioris of tiie Judges as to What Should be
Substituted for the (! rand Jury
A Public Prosecutor
Coroners, Coroners' Juries and Coroners' Inquests. .
Criminal Informations, Etc.
The Constitutional Question . . . . • • • • '
The (Iradual Diminution, by Different Statutes, of the Duties of Grand
Juries
Concerning the Presentments of Grand Juries
The Uselessness of ( Jrand Juries in Examining into the Condition of Jails,
Houses of Industry, Etc.
The Grand Jury a Superfluous Court of Appeal . .
The Law's Delay
The Absence of the Right of Challenge
The Modus Operandi in the Grand Jury Room
The Secret and Irresponsible Character of the Grand Jury . .
Asa consequence of the abolition of the (Jrand Jury, the Petit Jury
would be Immensely Improved, Intellectually
The Grand Jury Almost Superceded 1)y tiie Passing of the Petty Trespass
Act, the Speedy Trials Act, l']tc.
Hindrances to the Effecting Working of the Recent Ontario Act, Reducing
the Number of Grand Jurors
Thirty-four Objections to the (jirand Jury System
The Power of the Press
Opinions of Judges, etc., who Favor Abolition, Condensed from Repli-is
Made in Answer to the Circular of the Honorable, the Minister of
Justice , . . . . . • •
A Summing Up
Conclusion
I'AtlK
5
11
14
32
35
46
53
58
62
i'li
65
m
68
70
70
71
72
79
80
81
83
90
luo
101
.MSSiMib.'tatSL.
PREFACE.
rriHE (juestion of the almlition of the (Jrand Jury syHteni in Canada, wliicli,
-*- for a coii8ideial)le peiiod, had rec d more or Kss attention fro'n the
Bench and from the public and legal press, aciiuired about three years ago
fresh impetus, when tiie Honorable Senator (^owan, in his place in I'arlia-
ment, inquired, among ftlier things, if tiie (Jovernment had under consider-
ation tlie propriety of submitting a measure looking to a ciiange intlie system,
and substituting therefor one similar to that prevailing in Scotland.
The result of this inijuiry, and the action of the (Jovernment thereon,
8ubse(juently appeared in the form of a blue book containing the opinions of
the Canadian judges and some others, which I have (quoted hugely from in tie
following pages.
Since the issue of this blue book the press has referred to the ijuestion at
length ; with .singular unanimity still pressing for the abolition of the system.
As, however, there was considerable divergence of opinion among the judges,
the Honorable the Minister of Justice in introducing, this year, his measure
codifying the criminal law of the Dominion (although personally in favdr of
the change) did not appear to see his way clear to include therein the desired
reform, and the matter remains, therefore, as it was.
I find that a good deal of misapprehension exists in the minds of the
general public on the subject of abolishing the grand jury. It is thought by
many, who appear to have ind)ibed Ihe belief either from the charges of the
judges or in some other unaccountable way, that the grand jury is to be abro-
gated pure and simple ; when they are informed that, while it is proposed to
do this, the idea is at the same time to furnish a satisfactory substitute for it,
they appear to be perfectly satisfied and profess themselves to be anxious for
the change.
The judges and the press having discussed the subject, and the matter
having reached its present stiige, it may well be urged that the puldic, that
large liody of laymen who are chiefly concerned in this matter, should be in-
formed of the position of affairs in order that they may be able to form an
intelligent opinion. Many of these being practical men are quite competent to
pronounce upon the subject ; particularly may this be said of the more intel-
ligent of those who have served, or are eligible to serve, upon grand juries,
and of those who are in the conunission of the peace.
In addressing myself to this large, influential and intelligent body I may
be permitted to refer :
(a. ) To the unanimity of the prcsa, l»oth Conservative and Reform, in
favor of the change.
(h.) To the vast number of cases in all the Provinces of the Dominion
which are now apccdily, cheaply and natisfactorily disposed of without the
intervention of tin; grand jury.
(c.) To the position taken by the fJovernment and Legislature of Ontario
in reducing tlio number of grand jurors to thirteen, as Hhewiiig that {)ublic
sentiment, at least in that Province, is not in favor of continuing tlie presen*
costly system.
(d.) To the large body of judges, of grent experience, who are opposed to
the old system, and who advocate a new and improved one.
(e. ) To tlie serious objections uiged by men of ability against the grand
j"ry-
(f.) To the limited field of labor now occupied by the system as compared
with former years, owing to comparatively recent legislation.
(g.) To tlie fact that the reasons for maintaining the grand jury have
long since passed away with the decadence of the powers of the Crown and
with the appointment of independent judges.
(h.) And to the furtlier fact tliat the meanest subject need noffear,
under our system of government, the frown of the rich and powerful, while on
the other hand the wealthiest cannot purchase immunity from deserved
punishment.
The subject is one of extreme consetjuence, and may be considered as hav-
ing now entered upon a stage, which, at an early day, will be a final one.
In the following pages the writer has endeavored to review the (question
within reasonable coinpas.s, having regard, however, to such completeness as
the data at his command will permit. He is well aware that very much more
might ))e said upon the subject. Tiie most that he can hope for will be that
he shall have created in the minds of liis readers a desire for further informa-
tion about a matter which will be found as interesting as it is important.
Being very mistrustful of his powers, he would be more diffident, were it
not that he has the feeling that he is doing little else than collate the opinions
of the many eminent men whose remarks will be found herein.
St. Thomas, Ontario, Novembeb, 1892.
Sl^e Be(^i99i9^ of t!;^ ^f)d.
" Not in vain the distance beacons, Forward, Forward, let us ranee,
Let the great world spin for ever down the ringing grooves of cliange."
— TknnvsoN.
In conBidering the qtiestion of the expediency of aholishing the ftmctionH
of the (irand .Tuiy in leliition to tlie iidniiiiistration of cTiii.iiial justice in
Canada, it wonhl not ho particnhirly piotitahle (even if space jjerinitted) to
iiKjiiifc at any lengtli into tiie origin and early history of the system, or to do
more than very hrieHy refer to tlie signal services it performed in early times,
when kingly oppression and judicial tyranny prevailed in Knglund. An
examination into these matters would no douht be interesting from an histor-
ical or archadogical point of view, hut would answer no useful ])iirpo8e here,
owing to the gradual constitutiomil curtailment ot the powers of the Crown
and to the great changes effected hy modern legislation. I may, however, say,
rn passant, that the (|uestion is often asked, " What is the origin of tiie very
remarkable and characteristic system of trial by jury?" .Soire popular
histories regard the institution as the work of the great and good King Alfred,
but doubt is thrown upon this as having no well-grounded histf)rical foundation.
In the history of early Anglo-Saxon times may be found that which was un-
doubtedly the foundation of a tribunal somewhat similar in principle to our
(irand Jury.
In criminal cases the twelve senior thegns, according to the f)rdinance of
Ethelred II., were sworn in the county court, that they would accuse no
innocent man and acquit no guilty one. These twelve men were a jury of
presentment or accusation, like the Grand Jury of later times ; and the alisolute
guilt or iimocence of those accused by them had to be determined by sid)-
seijuent proceedings, »'iz. : by compurgation or the ordeal. Wiiether this is
the actual origin of the Grand Jury or not, the Assizes of Clarendon and
Northampton established the criminal jury on a definite basis. By the Articles
of Visitation of 1194 four knigiits were to be chosen from the county, who, by
their oath, were to select two lawful knights of each hundred or wapenstake —
or if knights M'ere wanting, free and legal men — so that the twelve might
answer for all matters within the hundred, including all the pleas of the
Crown, the trial of malefactors and their receivers, eto. This is the historical
Grand Jury.
Those desirous of informing themselves more fully on these ancient and
very interesting branches of the subject, may find what they wish in the pages
of Bracton, Fleta, Blackstone, Lord Hale, and other early writers, and, in
more modern times, in Forsyth's History of Trial by Jury, Hawkins' Pleas of
the Crown, Hdl on Repression of Crime, Freeman's Norman Conquest, Stubbs'
Constitutional History, and in the works of other writers.
Suffice it here to repeat that the institution of the Grand Jury is of great
anticpiity. It will be found that its great rigiits and privileges were recognized
and secured by Magna Cliarla, and that in dark ami perilous times it stood
manfully to its ancient and sturdy traditions, and to the oath which enjoined
upon its members that no one should be left unpresented from fear, favor or
affection or hope of reward.
That in early days it was, as its friends maintain, the palladium and bul-
wark of English liberty, cannot be questioned, and if the Crown now possessed
the arbitrary powers of those star-chamber times, it would, in the present day,
he as unwise as it would tlieu Imve been to advocate tlie aholition of tlie
system.
As, liowever, the Crown has been shorn of many of its ancient prerogatives
and privileges, including the luxury of abusing tlie liberty of the subject, tlie
propriety of abolisiiiiig the (Jrand Jury may safely be advocated as a step in
the direction of simplifying the practice and pr- cedure in courts of justice, and
as being otherwiti; in accordance with the spirit of the age.
It is (juite manifest that the liberty of the subject will never again be im-
perilled by the encroachments of the Crown, or by the tyranny of the Bench,
and, while it may be still necessary to have some check on tlie magistracy in
matters involving the liberty of individuals, it does not follow that no other
tribunal but tiie ancient grand in(|uest is available for the purpose. Witii the
protection afforded by tiie intervention of a competent, safe and satisfactory
substitute for the (Jrand dury, and with the assistance of the courts, whicli
even now are constantly called upon to exercise supervision over the decisions
of tlie Justices of the Peace, no fear need be apprehended in this respect.
In France, Italy and many other European countries, in our own Nortli-
West Territories, and in some of the States of the American Union, the system
does not prevail.
In Scotland, also, tiicrc is no (Jrand Jury, the duty of investigating and
bringing to trial in that country being assigned to a public prosecutor, sfyied
the I^ird Higli Advocate, under whom an officer bearing the extraori'iiary
name of Prucurator-Fiscal is appointed for each local district. The bu'^inoss of
tills latter otticial is to take the initiative in tlie prosecution of crimes, and,
there being no coroner's investigations in Scotland, he also performs tiie duties
usually assigned to the coroner in Caiiada,
In the following pages it will lie observed that I have collected tiie opin-
ions of a large minil)ei' of persons who share the belief tiiat this Scotch system,
in a modified forr.i lo suit a ; viiiger country, might safely, and with great
advantage to the public, be adopted in this Dominion.
In England, in modern times, the (Jrand Jury has often been objected to
as a sujierfluous step in tlie prosecution of criminal offences, and many eminent
judges, such as Lords Hrougliani,* Denmaii, Chelmsford and others have
lieen very outspoken in condemnation of the system.
Some years ago it was proposed to abolish its functions in cases which had
already been before a magistrate possessing similar powers, but, like many
another ancient law wliich has survived its usefulness, it lias been found as yet
*Tlii8 celebrated jidge and law reformer, in a letter to his friend,
the Procureur-CJeneral of France, expressed himself as follows: " I confine
myself for the present to the office of public accuser, a necessary insti-
tution in every state, which we entirely want in England. " ' ■ It seems
incredible that in a civilized country in which the princip'ss of jurisprudence
have been so profoundly exaniined an anomaly as glaring in
its machinery as leaving to chance the execution of the criminal law should
have continued down to the present day. You will scarcely believe that when
a man has been the victim, eithei in his person or his property, of any crime
or misdemeanor, the prosecution, the preferring of the accusation, sliould not
be tiie duty of any public functionary. Tlie individual who has already
suffered from the conse(|ucnce of the offence, is bound by the magistrate to
iiecbme the public accuser. He has already suffered Ui iicli ; it is not sufficient ;
he must bring to justice those who have inflicted this suffering upon hiiii.
Hence springs a host of inconveniences too long to enumerate, of which I
shall cite 'lut one, and that will be enough. Nothing is more frequent than
impossible to dislodge from its hold on the affections of the luiglisii people
tliis almost siicred relic of their nienior ihle past.
Not so very long ago it was necessary that all civil cases in the Province
of Ontario, tried in the Superior Courts of common law or in the County
Courts, should come Itefore a petit jury. A civil suitor was not then required
to ask for a jury, hut got cne as a matter of course. As the law now is, tiie
suitor, whetlier the issue involves millions of dollars or only a few hundreds,
does not, as a matter of right, get a jury, but nnist demand one, except in
actions of libel, slander, criminal conversation, seduction, malicious prose-
cution or false imprisonment, and not even in those cases if the parties, their
solicitors or counsel waive such a trial ; and very often the presiding judge
strikes out any jury notice that may luiv'e been given and ti'ies the suit him-
self, even should the result mean financiil ruin to the unsuccessful litigant.
The exercise of this arbitrary power on the part of the judiciary has not,
as far as I know, been objected to, and it certainly has the merit of cheapen-
ing and expediting ilie proceedings of the courts, which are results now aimed
at by the modern law-reformer.
As will appear in the following pages, marty of tlu Canadian judges to
whom the matter was refei'red by the Minister of Justice object to the
abolition of the system, and some of them say that public opinion is not yet
" ripe" for it.
It will bo remembered that in Canada, within a comparatively recent
period, some very radical reforms, including the one just referred to, have
been nuide in the law and in the administration of justice, such, for instance,
as the fusion of law and equity, the changes with reference to the rights of
married women, the extensions made to the franchise, the increased jurisdic-
tion given to criminal and civil courts and police magistrates, tlie important
additions made to the Kxtradition Act, iind the passing of the Devolution of
Esttites Act in tlie Province of Ontario, than which as Ciumcellor lioyd says
in Re Reddan 1'2, O. R. 7Sl : " No greater change has been effected in the
law by any i-ecent legislation, wlien its far-reaciiing conseiiuencea are properly
appreciated it may be found that the absorption of realty by personalty tends
to systematize jurisprudence in much the same way as the absorption of law
by e(juity." licsides which, numberless other important ciianges have l)een
made by Dominion and Provincial statutes respectively, which space forbids
my referring to.
The reader of the " Ingoldsby Legends " will recollect a laughable sketch
of the ancient form of a (i rand .Jury indictment, long since "reformed" It
is, of course, a caricature, but is really very little exaggerated. The indictment
lias been drawn by the clerk :
the tampering with tlie prosecutor by the guilty person, wiien he chances to
be rich. T have known, at the time when forgery was punishable by death,
many persons ac(|uitted because they had bought off" those who iiad been
obliged to enter into recognizances to prosecute. When the trial began the
witnesses did not appear ; and one of the strongest reasons in favor of the
abolition of capital punishment has been found in the great diiliculty of com-
pelling the injured persons to prosecute the guilty. This capital defect does
not exist in Scotland or in France. Thus in Scotland it never hapj)ens, as
with us, that on the one hand the guilty escape, and on the other that, from
time to time, prosecutions are inspi -ed by unworthy motives. Tlie (irand
dury atfords no remedy for this evd , on the contrary, it iu a l)ody acting
without the least responsibility, and frcijuently commencing a prosecution
against justice. Fo , as the majority out of twenty-tiiree jurors decides, we
can never tell whether such or such a juryman was one of the twelve who
voted for the prosecution, or of the eleven wiio were of the otiier opinion."
10
" Willi all proper diction, and due ' legal fiction' ;
Viz. ■ That he, the said prisoner, as clearly was shewn,
Conspiring with folks to deponents unknown.
With divers, that is to say, two thousand people,
In two thousand hats, each peaked like a steeple.
With force and with arms, and with sorcery and charms,
Upon two thousand brooms ;
Entered four thousand rooms.
To wit: tivo thousand pantries and two thousand celbrs.
Put in bodily fear twenty thousand in-dwellers,
And with sundry— that is to say, two thousand — forks,
Drew divers— that is to say, ten thousand— corks
And with malice prepense, down their two thousand throttles
Emptied various^that is to say, ten thousand — bottles
All in breach of the peace— moved by Satan's malignity —
And in spite of King James, and his Crown, and his Dignity."
The remark that public opinion was not "ripe " for these changes was no
doubt also used when each one of them was first Tnooted, and, in the case of
the first named, it will be recalled that most strenuous opposition was en-
countered from many eminent judges and from the connnon law Bar.
Gradually, however, public opinion was moulded into the required form,
and the admirable results achieved have fully answered the expectations of
the originators of these valuable reforms.
I ven'ure the prediction that it will be the same with the change herein
advocated, and, when a much better system shall have been evolved from the
present one, people will wonder how it was such a relic of ante-feudal times
was permitted to exist as long as it did.
The popularity of the demand for abolition has of late years become so
pronounced that I think the subject will scarcely require the robust treat-
ment recommended by Sidney Smith, who, to prevent the too frequent
recurrence of railway accidents, suggested, it will be remembered, the killing
of a director or two. I think the public is not as yet in the mood to follow,
with a slight change in the dramatis perwiuK, the learned divine's sanguinary
advice, but would nevertheless suggest as a possible "safeguard " and " bul-
wark " for those opposing abolition that the arguments of the other side be
carefully " made a note on " by the learned dissenting judges, their former
errors be recanted and in that manner future danger be averted. I hope the
honorable and learned gentlemen will not, as their reply to this, annihilate
me in their righteous wrath, ignominiously dismiss my arguments and my
case and say " De minimis non curat lex."
Notwithstanding all the efforts made by those who desire to legislate the
Grand Jury out of existence, that system may possibly still be flourishing,
somewhere, when Macaulay's New Zealander is engaged sketching the ruins
of St. Paul's, but, if the signs of the times are »ny indication, I very much
doubt such will be the case, as I think we are now nearing the beginning of
the end.
A SHORT ACCOUNT OF THE EARLY STAGES OF THE
MOVEMENT FOR ABOLISHING THE GRAND
JURY IN CANADA.
In Canada the question of abolishing the (irand Jury has for a number of
years been urged by the publia and legal press, as well as by municipal bodies,
judges and others, and even by Grand Juries themselves, and very strong
arguments have been employed for the abolition of what has been called " the
fifth wheel to the judicial coach."
The earliest reference to abolition in Canada which, in a somewhat limited
search, I have been able to find, was made by Mr. Justice Gwynne, now one
of the judges of the Supreme Court at Ottawa, in an address to the (irand
Jury at the Autumn Assizes held in the City of Kingston in the year 1869,
when he is reported to have said : " You are aware that (as indeed is almost
invariably the case in respect of all crimes) the charges have already under-
gone a preliminary examination before magistrates, aided in most cases by the
counsel of the Crown Attorney, so that practically the duty of grand jurors
is reduced to that of imjuiring whether in their opinion (twelve at least
always concurring), the depositions taken before the magistrate, shew sufficient
prima fade evidence to justify putting the accused upon his trial. Now, the
necessity for the continuance of this second preliminary investigation seems
questionable, and it is a matter worthy of consideration whether relief might
not without danger to the liberty of the subject be extended to the gentlemen
who are called upon to discharge the duties of grand jurors to their own great
inconvenience, and with so little practical benefit."
His Lordship, as will appear further on, has not only not changed his
mind on this point, but now adduces other, and even more cogent, reasons for
the abolition cf the (Jrand Jury.
For several years after this the matter, except being alluded to now and
then by the press or by a judge or an occasional Grand Jury, appears to have
been allowed to rest.
At first the (juestion of abolition was approached with caution, and few
went so far as to advocate any material change, but as the matter came to
be more freely discussed, tlie ranks of the abolitionists became augmented
until a very large number of intelligent critics, familiar with its failings, now
demand either its abolition or a radical change in its composition. Of
those wiiQ favor the latter course one of the most recent, and the most im-
portant, is the Ontario Legislature, which has, as will be noticed hereafter,
introduced and passed two Acts for the reduction of the number of jurors.
Although tlie first of these was repealed by tlie last, whicli latter provides
that it shall not become law until a proclamation issues, I think it is a con-
siderable stride in the right direction, and only a few years ago would not
have been thought of. It is, as has been said, " another nail in tiie coffin of
this venerable institution," because one of the main arguments employed for its
retention has been that by reason of the large number of jurors on the panel,
justice was more likely to be done than by a more limited number, or by any
other system.
There can be no doubt that any system which has been in existence for
the very long period of years that the (irand Jury has, will require a consid-
erable effort to upheave it. There is among mankind generally a great respect
for antiquity, and any suggested improvement must, in order to be successful,
possess sotne very evident ailvantages before a change will be tolerated.
1:
Senator ( Jowaii, in his first speech on this question before the Senate, said that
" some forty-six years ago I enieretl on judicial life with something of the
feeling that all things are good when old," iHit ." my impressions gradually
settled down into the conviction that the (Jrand Jury had survived its
usefulness."
The eminent critic and author, Mr. George Saintsbury, says that in writ-
ing the history of a literature or acting as a critic he deternunes " never to
like anything old merely because it is old, or anythijig new because it is
new."
A former county judge of Ontario, His Honor Judge (now Scnatoi)
(iowan, before mentioned, a gentlenum of rijjc expeiience and great ability,
who has actively participated in many important legal refoinis in ("anada,
appears, for very many years, to have strongly favored doing away with the
(Jrand Jury system, and has frequently addressed that body in the (younty of
Simcoe on the subject.
In an address to them at the June Sessions, in the year 1880, he is
reported to have said: "The (juestion of the abolition of the (Jrand Jury
has, it is satisfactoi-y to know, attracted consideral)le attention, and is now
being discussed in this and other Provinces of the Dominion ; and I notice
that a gentlenum long familiar with the administration of the criminal law
has laid before Parliament a measure on the subject. It is well that the
matter should be fully considered before legislation takes place, especially as
some differences of opinion prevail. ( retain the o])inion I have so often
expressed — that (Jrand .luries may wim safety and witii great benefit to the
administration of criminal justice be abolished, and that all that is necessary
to retain of their functions nuiy be better and more economically yjerformed
by responsible agents of the Crown. But I do not purpose enlaiging at this
time upon what has been already said, indeed, able writers in tlie public press
have taken the matter up, and little has been left to say in the way of reply
to those who wish things as they are, that has not already been well said in
the public press. The matter is now before the public. I have attained the
object I aimed at in addressing (hand Juries, which was not to draw out an
expression of opinion from the particular body addressed. 1 merely availed
myself of these occasions, hoping to direct public attention to what I believe
to ^'e a great defect in the crinunal law, which a long experience had convinced
me required reform — a reform that coidd be economically, easily and safely
accomplished. "
At the June Sessions of the following year His Honor again addressed
the Grand Jury in the following manner :
" I am told tliat the (juestion of the aljolition of (J/and Juries has been
brought nj) for consideration in the County C'ouncil for this county, now in
session. I am j)leased to hear of it, for I know there are many gentlemen in
that body who have frequently served as (Jrand Jurors, and who are
thoroughly competent in every way to throw light on a discussion that has
elicited some pulilic discussion. The cost attending tlie selection, summoning
and attendance of (Jrand Jurors is r, heavy item in ccmnty expenditure, and
the question on this ground, if on no other, is of great inqmitance to those
who have to provide for the cost. If the (Jrand Jury may be dispensed with,
evevy one can see there will be a large sim yearly directly saved to the county,
the machinery to replace it being provided from the general revenue. I speak
with confidence in asserting that a proper and efTective substitute can l)e pro-
vided at less than half the present cost of (Jrand Juries, and so all the
purposes they serve could be accomplished by an agency recjuiring no contri-
bution from tlie comity, and far less expensive totlie country. This Province
woidd have the necessary agency and be efi'ectively served by being divided
into say five circuits, a Crown prosecutor being appointed for each — answering
to the Advocate's Depute in Scotland — while the existing local machinery,
'
1.1
onr excellent Crown Attorney system, ooulil be taken advantage of as is clone
under the Scotcli Criminal Procedure in respect to the Procurator's Fiscal in
each county. All these officers would have a certain tenure, and the same in
dependence of local influence which the law accords to judges. They would
advise whenever necessary, and l)e under the direction of the chief law officer
of the Crown, ar 1 thus, without any serious disturbance in our systtm,
criminal prosecutions woidd be placed much on the same footing as under the
excellent Scotch system, for wliich it has been justly claimed tiiat under it the
investigation of criminal offences and the proceedings preparatory to criminal
piosecution are beyond the control of popular influence in the local sense,
while subjefjt to strict official supervision and to tlie control of public opinion
acting in accordance with the constitution. The Right Honorable the Lord
Advocate of Scotland, in an address delivered not long ago at Edinburgh
before the Social .Science Congress, speaking of public prosecutions, remarked :
' It certainly strikes a Scotchman as singular taat Englisli law-givers should
be engaged in investigating this problem upon first principles as if it had never
been attempteil before, when, if they look north of the 'J'weed, they would find
it practically solved to the satisfaction of the community.' I said to a (irand
Jury, speaking from this place in 1879 : In reforming tlie (J rand Jury system
we have a model at home in the Old Land — one long- tried and thoroughly
tested ; and if the wisdom of a scheme is to be measured by its working and
effects the system of public prosecutions in Scotland commends itself for imi-
tation and adoption. With all respect for those who favor the retention of
Grand Juries, and who have advocated it, I retain my oft expressed opinion.
I continue to think that untrained, changing, secret and practically irrespons-
ible bodies are not safe tribunals to be entrusted with the power of an enquiry
in the nature of a review of the magistrate's decision after oj)en investigation
of witnesses. I continue to think that (Jrand .Juries nuiy, with safety and
great V)enefit to the administration of criminal justice, be abolished, and all
that it is necessary to retain of their functions be better and more economically
performed by responsible agents of the Crown. I have not spoken to (Jrand
Juries to draw out any opinion from the particular body of (Jrand Jurors I
addressed. T am only anxious to avail myself of these occasions to reach the
thinking public, ho])ing that in time the subject may receive the attention it
deserves, an<l Parliament may apply the ajjpropriate remedy to what I believe
to be a great defect in the criminal law— a system which an experience of over
thirty-eight years has convinced me is unsatisfactory, cumbrous, expensive
and easily abused in administration, and not in harm')ny with the ins itutions
of the country."
I make no apology for quoting these able addresses at length, because I
know of no other man in Cana<la, and I think it will be admitted there is none,
better (jualified by ability, length of experience and a desire to serve his
fellow-men to speak authoritatively on this subject, than the learned gentle-
man who delivered them. Though of a conservative cast of mind, this able
and experienced jurist has not l)een restrained by any consideration of mere
sentiment from speaking out ntrongly in eondenuuition of the present Grand
Jury system.
hi
SENATOR GOWAN'S EFFORTS IN THE DIRECTION OF
ABOLISHING THE SYSTEM.
It might have been anticipated, and was, indeed, in accordance with the
fitness of things, tliat wlien His Honor .Judge Gowan became a Senator of the
Dominion he sliouM, in tliat wider fiehl for the hiw reformer, continue his
attacks on the (irand Jury system.
Accordingly in the month of Marcli, 1889, he delivered the following
masterly and exhaustive address, evidently embodying the result of many
years' careful research and observation. This speech is the ground-work of
my little review, and I bespeak for it a thoughtful perusal, as the Honorable
Senator touches upon some points which I have not space to refer to. He
said :
" I (juite admit the difficulties in doing away with a long estd.blished legal
institution -the full ccmsideration necessary before acting. I^he Grand Jury
system in England has existed for ages, and has certainly so far survived. It
has ))een vigorously assailed, but notwithstanding the many changes in crim-
inal procedure it exists ; but other usages and laws which existed for centuries
have been swept away, both here and in the mother country, and the public
gain tiiereby was soon clearly recognized. The day has gone by when the
cunning work and devices of remote ages are held sacred, merely because it is
old, and the worship of legal idols, especially, has in modern days been brought
t'> the test, the common-sense test, of utility and fitness. Change merely for
ciiangc sake is always objectionable, but cautious, gradual, permanent reform,
l)ased on experience, and for the love of excellence, must commend itself to
every thinking man.
" Home forty-six years ago I entered on judicial life with something of the
feeling that ' all things are good when old,' and I look back on nearly forty-
one years of continuo is judicial service with opportunity for seeing the actual
working of the (!rand Jury system, during that time having had occasion to
meet these bodies rarely less frequently than four times in the year — some-
times as many as six or seven. I may be excused this reference to myself, my
object being to show I am able to speak from ample opportunities for observ-
ing. What honorable gentlemen may think of my conclusions I know not. I
will only say they have not been hastily formed.
" My impressions gradually settled down into the conviction that the
Grand .Jury hid survived its usefulness, and a study of the .Scotch Public
Prosecutor system, which has worked well and satisfactorily for centuries,
confirmod that view, and suggested the advantage of applying it, in modified
form at least, to criminal procedure in C.mada ; for I quite agree in an obser-
vation made by the learned Chief .Justice of Ontario, nride to a Grand Jury
in 188), that ' it is quite impossible to dispense with the institution until some
very careful substitute is found.' I submit, liowever, we have an admirable
model in Scotland, one long tried and thoroughly tested, and if the wisdom of
a scheme is to be measured by its successful working, that of public prose-
cutoi's in North Britain commends itself for imitation and adoption.
" Honorable gentlemen will know that the main and primary function and
duty of our (iraml .Jury is, in etfect, to determine whether the magistrate,
stipendiary or ordinary, who lias committed a prisoner to jail on a criminal
charge after hearing the evidence against him, hail .any justification in subjt ct-
iny; tiie prisDuer to trial — whetlier, in fajt, the cominittiug justice had or had
not perverted his duty and oiniiitted a prisoner f n" trial up in a chargj u.j-
SuppDrted even by juiin-i fitci-i testin^ony.
" Stipendiary niagistrates, in Ontarii), at- all events, are ahle and experi-
enced lawyers. Tiie ordinary justice of tlie peace may not always be fully up
to the mark, but each and all constitute trilninals competent to commit an
alleged offender to jail to await his trial, and we must suppose the appointing
power (wherever it may reside) tal<e8 care that such tribunals are competent
and disposed to disciiarge their duties aright There is. at all events, action
in the ligiit, and individual responsibility — and lightly so, for it may be four
or five months before a (Irand Jury can pass upon the ease of a prisoner
committed for trial.
"What is to bo said touching tiie functions and operations of the (! rand
Jury which constitutes tliis tribunal of review upon the tindings of tiic sub-
ordinate ministers of justice, often men of large exi)erience in their duties,
who work openly under a sense of personal responsibility, and whose oath of
office recjuires them to do equal justice to the rich and tlie poor— ' Justice to
the citizen and the stranger demanding it as accuser or accused."
"Few are intimate with the actual workings of the (irand Jury system,
30 that its <lefects and the evils connected with it rarely attract public atten-
tion. My purpose will be served in referring briefly to some of what ' regard
as inherent and insuperable evils of this accusing power.
"The institution of the (Jrand Jury dates l)ack to the earliest peri<jd of
English history, its purpose being to enijuire into criminal ciiarges and r)fl'ences
supposed to be committed in the localitj', and of returning unto the c<nut to
which it is summoned it.-, delivery tiiereon. Always a clumsy means of certi-
fying cases for trial, it has degenerated into ' little better than a siiam. ' It is
in several respects mischievous in its tendency, and certainly is out of harmony
with the genius and spirit of our system of criminal jurisprudence.
One of its worst features is its secret and practically irresponsible char-
acter, every member of the l)ody being sworn to secrecy before he is
admitted to act. The best guarantee of civil libeity the open administration
of justice— is wanting, and publicity, the very essence of confidence in judicial
proceedings, the greatest security for good conduct— is strictly guarded
against. A secret tribunal of this kind, where a majority decides, is practic-
ally irresponsible, an«l may be made to serve as a block to a proper prosecution
— a screen for an offender who has been sent up for trial by a magistrate after
an open enquiry.
" In all my experience I am not aware of any case in which it has served
as a bar to an unfounded prosecution, wherein the sole agency of a responsible
Crown prosecutor would not have accomplisiied the same thing. But I am
strongly of opinion that liills have been ignored and charges suppressed tiiat
in the interest of justice, and indeed in the interest of the person charged, if
innocent, had better been disposed of by public, open trial. There are temp-
tations to covert approach and tampering witii such a body ; and it lias been
said, I fear not without ground, tiiat the recommendations of individual jurors
from the neighborhood, strongly imbued with local or other prejudices, iiave
prevailed against evidence. Possibly the advice and assistance of the Crown
counsel may frequently serve to overcome this, but even in this there is a
danger (I mean the free access of Crown counsel to tiie jury for advice and
assistance), for a passive jury may become the mere conduct pipes for giving
expression to the convictions of the Crown counsel, witiiout any responsiliiliiy
attaching to him. His advice may be good, but in tinding a bill or no bill on
the evidence before them the jury are alone seen ami responsible. The Crown
counsel has certainly opportunity, as I have said, for presenting iiis views, for
which, from the secret character of the tribunal, he is in no way amenable.
" Then the (jrand Jury is a changing Ijody — those from time to time com-
posing it being men not accustomed to the examination of witnesses or the
investigation of facts. How easy for a partial or unwilling witness, or one
who has become interested in averting a trial or conniving with the accused
or his friend, to suppress or color his statements in the secret examination he-
fore the Grand Jury. There is no adequate oliecli upon such a one. Again,
it is quite possihle tliat the (irand Jury or the necessary nuijority may l»e
prejudiced or moved by mistaken pity, and so refuse to put a person on trial ;
and even when their action is warranted they are not in a position to justify
their finding The interposition of a (jrand Jury does not shorten the impris-
onment of a person committed for trial, even if a hill l)e ignored, hut the
necessity lOr it may cause his detention for five or six months, in some cases,
unless he claims, as he can in Ontario in most criminal cases, the right to he
tried hy a judge without a jury.
" Another weighty objection to the (irand Jury is this : there is no chal-
lenge, such as there is to the petit jury. Persons related to oi' closely
connected with the prosecutor or the accused may be on the Grand Jury —
personally or politically connected, as friend or antagonist— or persons wlio
have a strong personal or pecuniary interest in the matter to be dealt with, or
men who hold and have expressed strong opinions on the case. Such persons,
every one will say, ought not to be on the (irand Jury in the particuliir case.
But how is it effectually to be guarded against, the safeguard of full right to
challenge wanting ? Nor is it a sufficient answer to say the verdict of a petit
jury must be unanimous, the finding of a (irand Jury is by the majority, but
who can calculate upon the influence that may be exerted in a secret tribunal
by one or two of its members, moved by prejudice or influenced by unworthy
and evil motives— nor is such a thing improbable of occurrence. To my mind
this is a grave objection.
"Then there is the possibility of mistakes without corrupt motive — mis-
takes that may lead to very serious consequences. I do not press this objection,
not being an evil inherent in tfie system ; all the same, gross mistakes have been
made, to my certain knowledge. A good many years ago, before the appoint-
ment of Crown Attorneys, the foreman of the (irand Jury brought in several
bills into court, and one of the prisoners was about to be arraigned when, by
the merest accident, it was discovered that only eleven of the (Jrand Jury
heard the evidence, tiie others hrving left the Grand Jury room for some pur-
pose. In another case the jury heard a near relative of the accused, an
intended witness for the defence, whose name happened to be the same as that
of the chief Crown witness, who happened to be out of court when the name
was called, and the other entered the (irand Jury room and gave evidence that
induced the Grand Jury to ignore the bill.
" An eminent Crown counsel, now on the Bench, mentioned recently tome
a matter that occurred in his own practice. He had witnesses to prove the
distinct admission by the accused of his guilt. The Crown officer sent them
before the (irand Jury, who heard the evidence ; but, singular to say, ignored
the bill. The explanation of the Grand Jury did not speak nnich for their in-
telligence. It was this : ' Why, we had no evidence against the prisoner but
what he said himself.' One would have thought such evidence sufficient to
satisfy an ordinary mind, but not so with this jury.
"Even in the city of London, where it is supposed the most intelligent
Grand Juries in England are summoned, the same has occurred. I recollect
several cases of the kind recorded in the Laiu Timci*. One was the case of a
foreman by mistake endorsing ' a true bill,' whereas the Jury had actually
ignored it. The prisoner was tried and found guilty, though the judge charged
in his favor. The mistake was discovered and pointed out, but there was no
remedy — everything was regular on its face, and the intention could not be
permitted to override the act. This gross failure of justice was remedied,
after a fashion, by a pardon through the Home Office.
" Another case I remember was an indictment against a man and woman.
The jury really found no bill against the woman, and the practice was, where
two were indicted, to draw the pen through the name of the party against
whom no bill was found. Thin, by inistako, the foreman omitted to do, and
botii prisoners were convicted and Hentenced. The judge in that case cut the
knot witli coura<^e, if not sanction of tiie law, and discharged the prisoner.
And still another case : A ])risoner iia<l a very reinarkahle name, and the
foreman of the (Jrand ilury happened to be in court when lie was arraigned,
and spoke up, saying : ' Why, we ignored that bill,' and sure enough it proved
to be the fact The foreman explaining, 'Not because we did not think there
was a case, but because he iiad been sufficiently punished by the imprisonment
since commitment.'
"The cost of (Jrand Juries is considerable -from $40,000 to .^oO.OOO
yearly in Ontario, I wouhlsay. This would be saved were tliebody abolished.
I am not disposei' ' >. advance the saving of money as a cogent reason in itself
against the instii .tion, but certainly an improved, a safer and more efficient
, system, modelled something after the Public Prosecutors in Scotland, could
be obtained with a smaller outlay, If (irand Jurors were not required it
would leave more material free from which to select the petit jury, which
everyone will admit is the more important one of the two — the one tluit finally
decides upon the guilt or iiniocence of the accused.
"It has been urged that the Grand Jury system is an educator of the
people, those serving as fJrand Jurors gaining a certain knowledge of law and
a right conception of its salutory influence, wliich tliey l)ecome agents in diffus-
ing in their neighborhood, and thus inspire the public with more respect for
the law and its administration. Perhaps so, and a nuin in a lifetime may have
two or three opportunities for gaining such knowledge ; but it must be honne-
pathic in an\ount, and it seeins to me tliat an intelligent reader of one of our
great dailies, which rarely fail to give full and intelligent reports of important
cases, would gain much more information at his own fireside.
" The Grand Jury system, I know, is regarded by some as * a great bul-
wark of our liberty,' a representative and democratic institution. It is an
ancient institution, no doubt ; but I fail to see how it can deserve the name of
a democratic institution — how it can represent even the county from which it
comes, except by a legal fiction, and I can discern no propriety in a grand, or
any other jury, fulfilling a sworn duty 'in accordance with the public will.'
In the dark days of England's history it may have stood between the people
and arbitrary power. I think Hallam mentions one case, not with approval
— indeed, he rather thinks they forgot their oath ; but few in the present day
fear that arbitrary power will venture to raise its hand in the courts or else-
where ; and if it did the people of this cnmitry would not, I am very sure,
fight behind the feeble barricade of a nioden (Urand Jury.
" ' Popular liberty' and 'popular rights' are happily established in this
country on a sure basis, and are understood and valued, and I must utterly
deny that Grand Juries are in any sense or to any extent the palladium of
either. Possibly this clinging to a worn-out institution grows out of the fear
that the country could not supply its place, but I have all confidence that an
honest and non-political substitute may easily be found. NN'hy should we
Canadians have any fear on this head ? The history of our country has shown
that the people of Canada are keenly alive to the value and importance of the
due administration of justice, and prepared to upliold it — no country more so
in the whole British Empire ; and, 1 will venture to add, no place where a
larger proportion of able and honest agents, fitted l)y professional traim'ng for
administration, can be found. In the year 1877 I called public attention to
some of the evils I have pointed out in the Grand Jury system, and also to
facts going to show it was discredited — that even then a large number of
criminal cases never came before Grand Juries, but were tried by a judge,
without a jury, upon an act of accusation prepared V)y the local crown attor-
neys from the depositions taken before the committing magistrates. I said :
% \
" ' It may be noted that now, as a matter of fact, l)y fur tlie greater nuni-
l)er of criminal eliargcs in (yntario are Hulimitted for trial on an act of accuHa
tion, in t lie nat\no of an indictment, which tlie connty crown attorney pre-
pares, the intervention of a<!ran<l Jury being altogether diHpenficd with. I
refer to trials before the county judge's criminal court, which, as you are
aware, posaesaea a jurisdiction embracing for trial, by judge ahme without a
jury, nearly every ofl'ence known to the law, except capital felonies. In this
judicial district only thirty-one cases during the present year were submitted
to (Jrand durics ; ninety-two were cases not brought befoie them at all, but
were tried by tiie judge witliout a jury, and all upim charges formulated by
the crown attoi'ney fron^ tlie depositions taken before the c<munitting magis-
trates ; and the i)r()portion will probaldy be tlie same in other jurisdictitms in
Ontario. A late return to the Legislature showed that only onetifth of the
fjrisoners conunitted last year, endiracing all the nmi-e serious charges, passetl
)efore a (Jrand Jury — the presentation of all the rest, or four-Kfths, the*
crown attorneys were alone responsible for.'
" Ami I also j)ointed out another fact—the power of Grand Juries being
cut dov/n, discredited as it were, by statute. I may quote the following
passage :
" ' Moreover, there is evidence on the statute book that the (Jrand Jury
are not so entirely trusted as in former years, for in a numbei' of cases they are
disabled from entertaining a chaige unless there has been a preliminaiy pro-
ceeding, or the indictment for the otl'ence by the direction of tiie attorney-
general, or by direction or consent of the court or judge having authority to
try the same '
" Some two years after this, in '879, public attention was ai'oused in
England by a very scandalous case which occurred there. It brought into
bold relief one of the inherent evils of the Grand Jury system, and went to
show the danger of entrusting such a body with a power of encjuiiy in the
nature of a review into the decision of magistrates after an open examination
of witnesses. I had referred to this danger indeed for years ; 1 thought that
neither in the interests of public justice, nor indeed in the i.itcrests of one
accused, was a secret encpiiry such as a (Jrand Jury makes, desirable or safe.
" I will ask permission of the House to read from a leading article in one
of the great London dailies, referring to the case of Sir Francis Truscott and
the Grand Jury system generally, and giving an instance of the power which a
Grand Jury possesses of sending a man for trial upon evidence taken in scci-et
with which he has never been confronted. The circumstances were briefly
these : A charge of libel was made before a magistrate against Sir Francis
Truscott, and when the magistiate heard the evidence he refused to grant even
a summons. There was really nothing in the charge, and the magistrate dis-
missed it. Nothing daunted, the prosecutor waited till the next sitting of the
Central C.minal Court, went before the Grand Jury, produced a post-card
containing the said libel, and probably swore to the handwriting of Sir
Francis Truscott. At all events, the (Jrand Jury found a true bill, and the
process of the court followed. Sir Francis was ignorant of the proceeding —
was, in fact, on the Continent at the time. The result was, the charge hung
over him for a month, until he returned, when the case came up for trial an'd
he was vindicated. Such a scandal might well produce comment. The article
from which I will read was in the London Times :
"'The action of the Grand Jury which put an alderman and the
f)roximate Lord Mayor of London on his trial for libel upon evidence given in
lis absence, behind his back, calls attention anew to the singular survival
among us of this ancient institution. It may be hoped that the circumstances
will give it its long desired roup de fjrnrc Grand Juries have had their
history, and once had their uses. They ha\ e served in past generations as
M)
mcuns of tustifying to tlie public opinion of thu uountry, and it still
occnHionally liuppciiH that tliiti purpoHu of tlicir existence is faintly recalled.
" ' These futile presentnunits— a relic of ancient activity — serve to illustratt-
the uselessness rathei- tlitui the utility of (irand .liiries as exponents of pul>li<^
o|)inion ; and, indeed, it caiinr)t lie doubted that tluu'e ai'e ample means o'
ascertaining the balance of oublic judgment at om.e ([uicker and more trust-
worthy in their action. What other purposes do (irainl Juries servo? They
have functions, as ])arts of our machinery of criminal justice, which are
generally useless, or injurious oidy as imputing the action of the courts ; but,
as the case of Sir l-'rancus Truscott proves, they are sometinujs positively
mischievous, exjiosing an innocent num to all the annoyance and disrepute of
being subjected to a crinnnal trial upon evidence altogether insuflicicnt to
sustain such a charge. They never serve a good pujimse, and at times they
serve a bad one. 'I'll is ought to be sufficient to ])rocurc the abolition of an
institution that has lost its use. Hut old institutions die hard among lis,
especially if, though their use has departed, they add any touch of dignity or
of onuiment to the life of rural denizens.
" ' We pass by at once the notion that (irand Juries are of any value as
exponents of public opinion.
" ' It is with (irand Juries as a part of the machinery of the criminal law
that we now have to deal. The purpose of their existence in this character
was to correct the errors or imperfections of the acti jiis of local benches of
magistrates. A ma^jistrate or magistrates in pettv sessions might conniiit a
man for trial upon evidence that did not even rai-^o o. prima Jacic case against
him, and the (irand Jury might stop the case from going further by finding
that no true bill had l)een estaljlished against the accused. On the other hand,
it might conceivably happen that a local bench would wrongly decline to send
for trial a person against whom a suHicient case had been established, and the
conij)lainant could then go before the Grand Jury and, by convincing them
that he had evidence enough to require a trial to be heard, could obtain a true
bill from them. Is either of these purposes of any value now ? W'e cannot
say that no magistrates ever conunit a man for trial upon evidence that does
not estaldish a prima facie case ; but when the accident happens there is no
saving of time of any importance in getting the prosecution (juashed before a
(irand Jury, while this mode of obtaining the result is always unsatisfactory
to the accused. The hearing of the (irand Jury is in private, and the baseless
character of the evidence on which the charge is founded is thus never publicly
demonstrated. Suspicion may always arise — and not unfre([uently does arise,
in such cases — that the evidence for the prosecution was somehow numipulated
in the (irand Jury room, so as to lose the force it had at the preliminary
investigatifin before a magistrate. We do not suppose this ever does happen ;
if it did it woidd furnish an additional argument against the machinery ; but
the result is that an unfortunate man, against whom we must assume there
was no case whatever, remains under a cloud from which he is never properly
cleared, The feeling of inadecjuacy of this private investigation was, we
believe, the leading motive that led the late Recorder of Loiulon, Mr. llussell
(furney, to condemn so strongly the retention of (irand Juries. The other side
of their action is at least e<iually to be condenmed. It is this which has been
forcibly illustrated by the case of Alderman Sir Francis Truscott. The (Jrand
Jury can send a man for trial upon evidence with which he has never been
confronted.
" ' Nothing can justify a system under which evidence given in private is
made the ground for otticially declaring that a man nuist be put on his trial.
The course of justice must be open from beginning to end, and the wrong
sufiFered by a secret committal is even greater than that suffered by a secret
acquittal. In the latter case society may suspect that the legitimate penalties
of wrong doing liave been illegitimately evaded. In the former case an innocent
'20
man haH to cninplain that a secret and irresponsiljlo ti-ihiinal has prnolaimud
him HUHpcutcd of guilt upon cvidnnuc given in Hocrct and in hin absence.
"'(Irand .furioH have boon long known to Im uhoIchh iiiHtitutionn ; Sir
Francis 'I'ruHcott's caH(! proves that they may l)c injuiiouH, and the claim for
thcii- altandomncnt is founded ajton a poHiliv(! wrong. VV'c must, liowever.inHist
upon tlie trutii tiuit nu;re UHileHsneas atror<lH a .strong argument for the
removal of any part of our judicial machinery that must, l>y its existence,
prove an impediment to the prompt dificharge of judicial funcitions.'
"On the very grounds referred to in this article I had years before argued
for the abolition of (irand .luries, and tiie fact of Sir Francis Truscott's case
showed a particular evil 1 indicated as possible having actually occurred.
" What I said from time to time to Cirand Juries was not with any desire
of an expression of opiiiio'n from these bodies, l)ut as the means of directing
public attention to tiie subject, and promoting, if pos8il)le, an enlightenecl
discussion. My object was, to a certain extent, accomplished, and the matter
was freely discussed in the public press some years since.
" (Irand Juiies I addressed in every cas^ adopted the views I presented ;
but like bodies, I must say, di<l the same thing in the case of eminent judges
who held the contrary view. From the very scat from which I spoke the
late Sir Matthew (!ameron, a most able judge, coming after mo, took occasion
to 'blow a counter blast,' strongly favoring the retenti<m of the (Jrnnd Jury,
and the body he addressed exjjressed concurrence in his views- ,is did a
Toronto (Irand Jury some time after, with emy)hasis. And so it was in the
case of other judges for and against the system. In almost every case the
opinions expressed from the Bench were echoed from the jury box. I may say
also the late Chief Justice Draper held Sir Matthew Cameron's views respecting
Grand Juries.
" In point of fact, the judges of Ontario are divided on the subject. I
mentioned the names of two deceased judges w ho thought it inexpedient and
unsafe to abolish (irand Juries. I may say, on the other hand, that the late
Chief Justice Harrison on several occasions declared himself in favor of the
abolition of Orand Juries.
" I feel I ought to give the reported words of my friend, the late Sir
Matthew (.'ameron. I will accordingly read from the report of his address at
IJarriein mO.
" 'The (irand .Fury might also become a thing of the past. He referred
to the liill passed by the Ontario Legislature reducing the number of(Jrand
Jurors required to lie summcned from twenty-four to fifteen, but it had not
yet become law, because it was doubtful whether the Provincial Legislature
had the power to make such a law ; but it was hoped the Dominion
Government would take the matter up and allow the Act to pass ; but
inasmuch as they had not done so the Act was not yet in force.
" ' The Grand Jury was expensive, it was urged by those who would have
it abolished, liut the (jiiestion was, could a better or cheaper system be
devised ? The whole cost of the (irand Jury system would probably not
exceed $1,200 a year in a county of ordinary extent, a sum which he thought
would be exceeded were the Grand Jury superceded by a crown prosecutor,
as has been suggested. The Grand Jury has been designated, by reasons of
its important functions, the bulwark of our liberty But apart from its value
in this respect it was useful as an educator, (irand Jurors, during their
attendance at court, gained a knowledge of the laws and heard much of
interest and importance, (ioing home and diffusing this knowledge among
their neighbors they helped to establish in the land a correct and salutary
conception of the law, and to inspire the public with more respect for it. A
man's liberty was of the utmost importance, and we should hesitate before
taking away any of tiie protection which the law throws about it, Aa to the
•-'I
want r)f triiiiiing iii-gcil agiuriMl grand jiii'oi'H, II Ih LnnlHliip Niiiil Ik- tlioiiulit
niori) of t)i(t opiiiioiiH of twelve |ti'a(!ti(-iil iiiun tliiiii of onr Icatiii'd man. Muii
of Hkill and learning art- apt to theorize. .Sptwiking of the need for thir exiHt(Mice
of theOiand ■hiiy, llin L< I'dship's opinion mum tliat men were eonHtitnted
pretty nnu'li as tliey were himdre(U of yeat'H ago. There were still to lie foiuid
eontentions and wrangling ; men wei(!, an ever, liahlt; to lie carried away liy
their pasHionM. Our foretathers had heen wise in their generation. There had
been diH|)layed liy thetn in times [)a8t great pi(!('iHion, great intclligonco andt
great learning, in their jmiNisions for the siifety of the snhjeet and the jiiSy
administration of the law, and he did not think that such a change had coni^
over snliMe([Uent gencirations as t<i warrant the doing away with valuahlj,
institutions which they had founded for the prott'ction and w«'ll lieing of th,
individual and society at large. All courts were expensive, liut necessary,. I
might lie urged that not one-hundredth pai't of the popidation were engaged
in litigation, while the rest were taxed to pay foi' it. Mut what was the case
of litigants t<i-day might he the ca.se of other piiople to-morr<iw. He had
nientioned this (jUCHtion of th<> aholition of the (irand .Inry tii every one of
these liodies who'n he had the honor to address, and asked their opinion, that
it might he sent,, as <itiieis had, to tlie Secretary of State He was aware that
a (Jrand .Juiy sitting in the place of the one he was addressing had given an
opinion favoring the alxilition of this triliunal ; tint nrost (inind .liirieshad
taken a dilVur'unt view of th(! (piestion. The representative of a constituency
might, on the sjxir of the moment, sirpport some movement ajijiar'ently looking
towards economy, and without reflecting njiorr the ultimate issue of it. So,
merr who have olijected to th(( (Ir'and iliir'y systerrr may have lieen led to d<i so,
actrrated solely liy the iprestion of expense. His L<ir'dship had, ther'efoix',
dwelt at some length on this srrliject in or'der to jireserrt it clear'ly and fully to
them, and to have their- opinion as to whether it wonld he advi.sahlc to change
,he 9y8t(!m, and what char'acter- of change, if any, they would suggest.'
"1 will also, if the House will hear me, nuote the views of two very
learned judges now on the Bench — the Hon. .1. H. Hagarty, Chief .Justice of
Ontario, and the Hon. Mr'. Justice (iwynne, of the Su[)renre Court. In
addressing a (hand .Jirry in Toronto some years ago the for-mer said:
" ' With reference to the usefirliiess of that old-fashioniid iristitrrtion, the
Grand Jury, without entcriirg into the coiistitutioruil (juestion he would simply
say it was quite impossible to di.spense with it until some very careful
substitute was fouird, which the present law certainly did not present.
Parliament, in its wis<lom, of conr'se, might decide on a substitute, but until
that was done he was sutKciently old-fashioned in his noti>«ns to think that
gr-and juries could be made use of as a most excellent irrstitutiorr, per'for'rrring a
most important furrction in the administr-ation of justice, and standing, as he
had fiften krrown them to stand, as a ver-y proper liarrier between absurd
eha'ges freipiently made and the innocent person who whs thus saved the
igrronriny of standirrg in the dock on a char'ge that no twelve men coirld
eutertaiir.'
"Mr. Justice (4wynne, in an assize address to a (irand Jury, at
King8tfin, spoke of the evils of the system, and after referring to the prelimin-
ary examination before magistrates, and the inconverrierrce of re(juiring
another en([uir'y before a (ir-aml Jury, the lear-ned jndge continued:
" ' .Such, however, is our law, that at the busiest por-tions of the year ymi
are called fr-om your avocatiorrs an<l private pu'suits to reirder to the country
the invalualile ser'vice of determining whether the nragistr'ates who have
ah'eady investigated the cases hove or have not gi-ossly perverted their duty,
and whether there is, in fact, any sufficient justification for the detention of
persons whom they have committed, and for subjecting them to trial for the
oflTence charged. I do not pretend to suggest that the iirtervention of (irand
Juries should not still be m.iintained in state offences, as a pidtection to the
22
subject against tlie tyranny of the government, if tlie days for government
acting tlie role of tyrants are not passed away ; but to call for their interven-
tion in those cases of crimes against society at large, which are the ordinary
subjects for the ordinary consideration of graiul juries, is, to my mind, an
absurdity v/hich can only be accounted for by that veneration for antiquity
which seems to overshadow in some things the human mind. . . . Well,
gentlemen, the law calls n[)on you, twelve at least concurring, to investigate
these cases, which liave already been so investigated that, as a result, five out
of the eight accused are confined in jail in the custody of the sheritl', and I
trust you will Hn(i, as indeed I doubt not you will, that the connnitting
magistrates have not been so arbitrary and unjust as to c«immit the parties
without some prima I'nric evidence justifying the putting them on their trial
— that, in fact, you will find that their labors have not been in vain, antl
perhaj)S you may be induced to encjuire whether the service you are called
upon to render the public is of that value as to present an ecjuivalent tor the
inconvenience to which, in your capacity of grand jurors, you are put.'
" The subject was a good deal discissed by the general press, and I have
numerous articles cut from leading journals l)efore me. I shall only occupy-
y.>ur time with the substance of one, but it is from the pen of a num of great
ability — the ablest and best informed public writer on the continent, in my
judgment. I will read from the /fys/^/Hi/c?-, an admirable publication, which
was given up a few years ago, to the great regret of its many readers ;
" 'The (irand 'lury ([uestion continues to be the theme of observation from
the Bench. Kverybody knows that the history both of the (irand and Petit
Jury is, in its details, a chapter of accidents. Hut in its main character
neither of these institutions is accidental ; nor is the origin of either of them
so local or personal as some recent antiiiuaries iieein to imagine, the jury being
found in Scandinavia as well as ni England. The (J rand .Jury was, perhaps,
in its origin merely an instrument for bringing offenders to justice, very
necessary at a time when there was no regular police, as well as for presenting
local matters reijuiring reform. This function is now almost oltsolete ; but
the same cannot l)e said as to the cognate function of determining what cases
ought to be sent for trial. Some sort of prelimiiuiry consideration of the
evidence there must be ; it will never do to put a man in the dock on mere
suspicion ; all the authorities say in effect that, if the Grand Jury la abolished,
a public prosecutor nuist l)e instituted in its place. Certainly the ({rand
Jury, in its present form, seems a waste of time and money. Nor, sitting in
secrecy as it does, and rt'itl-.out the giuirantee afforded by clear personal
responsibility, is it perfectly tit on all occasions to be entrusted with the key
of justice. Into its conclave j)olitical and social considerations nuiy find their
way. This liability was brought home to the minds of nuist people in I'ngland
by the case of (jovernor Kyre, which the (irand .lury refused to send to trial.
But political feeling had been excited, and the (irand Jurj' closed the gate.
A public pi'osecutor would be guarded by his professional instincts against
irrevalent considerations, and though he woidd, in the first instance, owe his
appointment to the government, it is diltieult to imagine any circumstances
in which his care for his own reputation and Lis interest in liis office would be
likely to give way to his desire to oblige a minister. To the institution of a
public prosecutor in time we shall i)robably come.
"B}' the abolition of the (irand Jury some better materials migiit be set
free for the composition of the petit juries. Assuredly it can only have been
accident that assigne<l the more important function to the weaker tribunal.
In England it is appalling to see to what hands the most momentous causes
and even the i.ssues of life and death are consigned. If the judge is strong
and uses his influence he may guide the jury right, but otherwise the result
nu'st be often a mere toss-up — or, what is even worse, it must l)e decided by
1 lie tricks of advocates. Any sort of prejudice is sure to carry the day. Our
23
people are, on the averagi;, hetter educated and more intelligent than the
Knglisii ; yet we have iiad recent j)toof that the jiiiy-box may he .swayed, in
tiie face of the clearest evidence, hy local sentiment, and more than once
suspicion has prevailed that grosaer influences weie at work."
"I am iinahle to say how opinion preponderates amongst the superior
ministers of justice or amongst i)rofe.ssional men, noi can I sjjcak with
al)solute certainty of general piihlic opinion on the subject. All 1 saw,
however, in the general press, favoied tiie abolition of grand juries.
" I think the (juestion is worthy of conirideration by the government
(with all the advantages which a govei'ument possesses for a full examination),
in view of a uniform and better j)r()ceduie applicable to the whole Dominion,
by snbstituting for the (irand .lury a more perfect system for working out on
safe lines an important branch in the nuichinery of criminal procedure. Such
a change has lieen strongly urged in England, and a remark made by the I.,ord
Advocatrt of Scotland in an address in Kdinburgh before the Social Science
Congress struck me at the time as highly suggestive. He said : ' It ceitainly
strikes a Scotchman as singular that Eiiglisii lawgivers should l>c engaged in
investigating this pi'oblem upon first principles, as if it had never been
attempted before, when, if they look north of the Tweed they will find it
practically solved to the satisfaction of the community.'
" Some tliirty years ago a j'oung Scotsman settled in Ontario, full of life
and energy. He was soon pushed to the front in matters of public concern,
where methodical and business habits were reijuired. Of course, he became a
grand jurynum, and naturally his fellows selected him as foreman. He
industriously .ipplied himself to gain a knowledge of the duties of the new
position. Having done so he arrived at the conclusion the (irand .lury was a
useless, if not a mischievous institution, and \u'. contrasted it with the
excellent system in the land he had left. With the courage of conviction he
at once acte t, told his fellow-jurors, ' I can see no nuinnei' of use in what you
are doing ; we are a bill of expense to the country, and we are losing our own
time. Let us reconunend that the thing be abolished.' And accoi-dingly a
presentment was jjrepared to that effe(;t. That Scotsman is no longer young ;
his energy, ability and self-denial secured for him deserved success ; he is now
one of the merchant princes of Canada, and 1 rejoice to see him at this
moment occupying a seat on the floor of this chaml)er. I will not venture to
name him, but it is gratifying to know he is in .sym|)atliy with my move. Yes,
he is one of the men from north of the Tweed to w hoin the Lonl Advocate
referied a,s knowing, and therefore valuing, the admirable system of public
prosecutors in tnat country.
" In Ontario the ground is well prepared for a change in that direction,
and modern legislation has led up to it. Let me take a brief review.
" The conduct of crinunal prosecutions in the Province of Upper Camida
was in a very unsatisfactory condition for many yeais jjrevious to 18.j7. h\
the early settlement of the Province oil'ences of a serious character were rare,
the counties few in number and the law officers of the thown- the Attorney
and Solicitor-tieneral, were able to give personal attention to the conduct of
cases at the assizes, usually two in the yeai, the sittings of these courts being
regulated by the judges, and following each otiier at such intervals as enal)le(l
this to be done. Mut it was iiot so in courts of general sessions of the peace ;
these courts were held four tinu;s in the year, nt periods appointed by
statute. The gieat bulk of the criminal prosecutions in the Province was in
tiiese courts, and these ])rosecutions were left to take care of tliemsehes, or,
what was still mo!e objectional»le, left to the conduct and control of private
individual prosecutors, who engaged counsel to conduct them. In j)rocess of
time, owing to a rapidly increasing po|Julation and other cinumstance not
neceasai-y to advert to, the volume of criminal cases largely increased, and
the law oHicers of the Crown, members of the (!overnn)ent, necessarily
24
engaged in many otlicr duties, could rarely attend the courts of assize ; the
number of counties also increased, and with this came added courts, so that it
was quite impossil)le for the Attorney and Solicitor-(ieneral to give personal
attendance except at courts at tlie seat of government, or, in exceptional
cases, at the courts of assize in other parts of the i)rovince, and the practice
arose for the Attorney-Oeneral to commit the Crown business to mendjers of
the bar selected by them, who acted for them at tiie courts of assize —or,
more recently, to leave the business to the local crown attorney, though
that, I believe, has been rarely done. A constant change in (Jrown officers
was inevitable, and could scarcely conduce to etliciency or gender a full sense
of the responsibilities of the position- -the appointments being only ail hoc.
"The court of (juarter sessions, with a greatly increased business in
number and importance of cases, remained as before — prosecutions controlled
by individuals or left entirely to the courts. Tiiis condition, in a matter so
important as the administration of the criminal law, was calculated to cast
discredit on the law and its administration, and there were, in fac(, many
instances of gros-j failures of justice from the imperfect presentation of cases,
or partial or personal feeling or prejudice entering into a prosecution.
Complaints became numerous and serious of the evils generated under such
system.
" In 18;")5 I remember a series of articles appeared in the only law
periodical then pulilished in the country ; and, indicating public opinion,
were supposed to some extent to have stimulate!' the legislative action which
shortly after took place — the pi'ssing of the law which has (survived in all its
integrity the love of change, not an incons{)icuous feature in modern
legishition. I refer to the County Crown Attorney's Act, the work of the
right honorable gentleman now the First Minister of the Crown in Canada.
That Act was passed in the year IH.IT, and is one of the best and most valuable
of the many statutes effecting reform in law procedure which 8ir John
Macdonald has j)laced on the statute book. In one of the articles I refeiTcd
to, setting out witii the pn)i)osition that counsel acting for and connnissioned
by the Crown was essential to the due administration of justice in all the
crimiuiil courts, and called for with a view to the more efficient restraint and
punishment of crime, and moreover that aided by public prosecutors the
l)Hsiuess of the courts of assize would be on a better, safer and nmre
economical footing, it was urged :
" ' If it be necessary that a Crown counsel should conduct the criminal
business of the court of assize (and that it is necessary no one denies), is it
not ecjually necessary that there should be such an officer for a like purpose
at the (|uarter s^essions ? lioth are courts having criminal jurisdiction, with
similar powers for the punishment of offenders ; if the coui'ts of assize can
sentence to hard 1 tbor in the common jail, or to long im[)risonment in the
penitentiary, so can the courts of (juarter sessions. A judgment of the
coui't of assize affects liberty and character (comprehending the interests of
many — wife, children, relatives, etc.) in no greater degree than would a
judgment of the (jnarter sessions. Ai-e the cases at the sessions few and
insigniticant ? No; these courts sit four times in the year (the courts of
assize sit only twice^ and dispose of more cases than tlie superior courts ;
and, if we leave out capital felonies and some few offences excepted from the
jurisdiction of the (]uarter sessions, the desciiption of cases in both courts is
the same. Do tiie judges of assize need the assistance of counsel more than
the judges of the courts of quarter sessions? Certainly not. What then —
does a crime when presented for trial at the (juarter sessions lose the
distinctive character it has at the assizes ? Is an offence against the peace or
dignity of the (^rown — the Queen, the plaintiff' — at the sessions to be
regarded wholly as an offence of private niiture, affecting only the individual
injured (who is allowed to manage and conduct it as he sees tit)— that the
party injured is, in fact, the plaintiff? Certainly not, or the law would
or.
confer upon him tic rights of a plaintiff. A crime, then, is to l)e regarded in all
respects as losing nothing of its nature or charactei whatever tribunal it is
brought before for investigation. IJut in ])ractice the Queen is represented in
the courts of assize, and ))y her representative 'learned in tiie law' brings
her cases before the court and jury, presenting them in tliat clear and
intelligent way which so greatly aids theadministrationof justice; while in her
courts of quarter sessions her cases are left to take care of themselves.'
" In respect to t! e value of a public prosecutor at the assizes it goes on
to say :
" ' On the assize day the Crown officer appears, commoidy at the opening
of the court. He knows little or nothing of the business he has to conduct;
even of the cases remaining from the last assizes his predecessors inaj' not
have left any notes for his guidance ; of the new bu.siness he must look to the
depositions and other papers for his inform ition. The Crown officer's first
care, then, is to hunt up the depositions and papers in each case, and to
exaniino them, that he nuiy be able to judge from the facts and circumstances
alleged what offence should be charged and how it should be set forth ; and
herein are important considerations, for the same facts may support charges
of a very different character, and a misdemeanor or a more serious charge —
felony — or several charges of a like hue, may i-est on the facts. Again, the
charge may rcijuire to be varied in several counts of an indictment as they can
be sustained m evidence. The examinations, etc., taken by magistrates, are
not to l)e relied on as designating the offence with legal accuracy — what it
may be is to be collected from the statements therein — and it is often necessary
to examine the prosecutor and his witnesses vnut vori' to understand the
matter set out in the depositions, or to obtain duld from facts and circum-
stances necessary to be alleged and jjroved, but yet not state<l in the
depositions. Having decided on the offence to lie charged and the mode of
laying the same the indictment is drawn. The ("rown officer must then
ascertain if the witnesses necessaiy to the finding a bill and proceetling to
trial are present. If not they must be sent for, or if impossible f o ])rocure
their attendance in time an aj)plication must be made to put off the trial to
another court — frequently causing great inconvenience to the prosecutor, ttie
witnesses and the public, and working with unnecessary severity against the
party accused.
" ' If an indictment be found the trial goes on, the Crown, if need be,
exercising its rigiit to challenge. 1'he prosecution is conducted by an officer
of the Crown, who feels that his duty is, not to fight for a conviction, l)ut to
lay the facts bearing upon the matter calmly an(i deliherately befoi-e the court
and jury — his aim is to bring under review all that tends to throw light upon
the charge, his only wish that the supremacy f)f the law may not be defeated
from the omission of proper evidence, or through any inaccuracy in the
proceedings. W hether examining witnesses or addressing the court or jury
he feels his position ; and ])eing specially appointed to aid in tiie administration
of justice he is fi'ce from that bias which, otherwise, he miglit not l)c able to
divest himself of if the panl advocate of the party directly affected.'
" And speaking of the anomalous procedure at the sessions the writer
observes :
"'Then the clerk of the peace prepares an indictnient, as best he can,
on the depositions returned to him. In ordinary cases he may be cfjual to it,
but he is not competent to deternune the way in which the charge should be
laid, the sufficiency or comj)leteness of the evidence, etc . for competency
involves a thorough knowledge of the body of criminal law, the law of
procedure and the law of evidence, (^an it be a mattei- of surprise, then, that
prosecutions are defeated from defects in the indictment, or fail for want of
sufficient evidence being at hand.'
2(i
" * The indictment drawn, the duties of tlie Clerk of the Peace as to the
proceedings are at an end ; tlie jury is then called hut the rigiit of challenge
in the Crown is here a nullity. At the trial the chairnuui examines the
witnesses (re-examining them if needed), and cross-examines the defendant's
witnesses, and is compelled to combine in some nieasuie the ottice of judge and
Crown prosecutor. This is obviously an anomalous j)ositioii, the judge at any
moment liable to have exception taken to his mode of examination, his
questions objected to, and then required as a judge to decide on tiie j)ropricty
of the (]uestions by himself proposed. Yet this is forced on the chairman
wherever counsel is employed on the defence, for he has either tacitly to allow
justice to be defeated, by j)ermitting half answers and doul)tful f)r colorable
assertions to go before the jury as evidence, or to elicit the whole truth, l)y
examination and cross-examination of witnesses. This observation lias special
force when the witnesses for the prosecution are disposed to favor tlie accused.
Hut sometimes the complainant will retain counsel. Why should he do so 'i
It is not a proceeding to give satisfaction to him, but to vindicate public
justice. He has but exj)ense and trouble. The fruits of the conviction, when
the criminal has any property, go to the country or the Crown. With counsel,
then, so retained, the nuitter is not l)ettered ; he is disposed to identify
himself with the complainant, and look on his client as the prosecutoi-, instead
of considering himself acting for the Crown. Will he not be moved to handle
the case just as he would an action of trespass, giving an exaggerated view to
the jury, and using all his ability to secure a conviction against the accused —
in whose favor the benevolent principle of the ICnglish law has made all
exception, and conunands the veiy judge to be his counsel. Any one familiar
with the proceedings at (piarier sessif)ns must have been struck witli the
contrast between a counsel ommissioned by and acting foi- the Ci'own and tiie
counsel employed i)y the complainant — the former conducting his case in a
fair, calm and ingenuous manner, the latter professedly acting for the Crown,
but in reality bringing all the tact and ability he is master of to advocate his
employer's views. ......
" ' Our own experience has presented many cases in which no doubt could
be entertained of the guilt of the parties ; and yet, by reason of some defect
an acquittal, of necessity, took place ; and from different (|uarters we have
heard of similar cases in wiiich the ends of justice have been defeated. Again,
an offence is cominitted and public justice — the safety of the community —
demaiids that the offender should be proceeded against and puiiislie<l. Hut
the party injured raasons thus : 'To have tiie prosecution projieily conducted
at tiie sessions 1 will be compelled to employ counsel and pay him out of my
own pocket ; and this, too, in addition to my personal expenses and loss of
time, etc., in attending the court. It may be my duty to lend my aid in
punishing a criminal act, but it will be better for me to put up with the
injiwy done than subject myself to the annoyance of a ci'oss-examination of
defendant's counsel, and be at such trouble and expense. The public are as
much interested in the jirosecution as I am ; the county will be the gainer ; I
cannot be.' The matter is then allowed to drop. Even where willing to
engage counsel parties are not always able to do so — and yet the law professes
to shed its jirotection over all. (Criminals are thus allowed to escape, and,
emboldened by impunity, to persevere in crime. Is this recoiK'ilable with
justice or the principles of sound policy '!
" And the suggestions follow, viz.:
"'That in every county or union of counties, for judicial purposes, a
barrister of several years' stan<liiig should be appointed, with some certain
tenure of office and a small salary attached to it (as it were, a retainer from
the Crown), with certain fees on every indictment and trial, the fees now
payable to clerks of the peace for indictments to cease. An arrangement of
this kind would fnduce respectable practitioners to accept an ottice thit would
thus confer a certain stnfvi.
" ' Tlie duties of tliu county attorney iniglit l)o as follows : To aet for
the Crown at tlie ([uarter sessions in tiiu same way as the attorney -general,
or other Crown otlicer, othciates at the ansizes ; to receive from magistrates
and coroners tiie informations and j)ai)ers in criminal cases ; to inspect these
j)apers and examine tiie ciiaraeter au<l sufficiency of the evidence; to secure
tlie necessary documents and tlie attendance of all necessary witnesses — in a
word, to get uj) the evidence and arrange all things ready for the ti'ial. To
attend, also, at the assizes, and assist the attorney or solicitor-general, or
(lueen's counsel (as the case may he), and in the absence of such an officer to
conduct the business himself. And, moreover, to assist magistrates by his
advice in their piimary investigation of imporlaiit cases. 'I he county-
attorney might also see to the enforcement of forfeited I'ecognizances ; a])pear
for tlie Crown on application to bail ])riHoiiers ; might have the charge of
))rosecutions, undei- the law for suiiimary convictions, connected with the
revenue or public domain — in fact, all i;ases prosecuted in petit sessions by
public officers in the name of the Queen.
" ' We have now noticed briefly what has occurred to us in favor of the
institution, and the duties we would have assigned to county attoi'neys, and
believe the subject is of sutHcient imj)ortance to claim the attention of the
law officers of the Oown during the ])resent session of parliiunent. The point
occupying greatest prominence ia the absolute necessity for Crown ])rosecutor8
at the (juarter sessions ; and we appeal to every one conversant with the
transactions of these courts if criminal trials can be conducted satisfactorily,
or consistent with the public interest, on the one hand, and what is due to the
accused on the other, while criminal prosecutions are left to take care of
themselves (unless, indeed, the judge acts in the double capacity of judge and
public prosecutoi ), and defences are conducted by counsel for the accuse<I —
if compelling j)arties injured in addition to their loss, to j)ay for conducting a
trial for an offence of a puWic nature is reconcilable with the spirit of justice
and attention to individual rights, and if there is not a consequent unwilling-
ness to prosecute, or private agreements to compromise, in defeat f)f justice —
if cases of failure in justice and abortive prosecutions against guilty parties
are not of freipieiit occurrence at the sessions, from errors in the indictment,
defects in the evidence, the want of searching examination of witnesses, and
the like. Need we pursue this question further, having eveiy thing that can
be deduced from principle and experience in support of our views. W hile,
then, it must be admitted by all that the interests of the public refpiire that
no guilty offender should escape ])unishment, it would seem an equally clear
and incontrovertible position thit whenever, from any defect in the system of
prosecutions, or from whatevei- cause it proceeds, a prisoner csca])es that
punishment which is due to his crimes, substantial justice is wounded and
public wrong there))y increased.'
"All that was said applies now to the several proi'inces where the office
of local Ci'own prosecut(jr (Crown attorney) does not exist, and I have dwelt
on the subject, for 1 am ])articularly desirous the matter should Ite ])laced as
fully as possible before all concci-ned. If honorable gentlemen will liear with
me, I should like to give a general view of the county crown attorney system
in Ontario, and to refer to the statutes for those who wish to fully examine
'I he Act res])ecting the appointment of local crown attorneys will be found
in Consolidated Statutes of Upper Canada, chap. 37. It provides that
barristers of at least three years' standing at the Bar shall l)e appointed to
aid in the admiivstiation of justice, and to jicrform the duties assigned to
county attorneys, and tlisables the officer or his partner in business from
being directly or indirectly concerned as counsel or attorney for any person
or party charged with treason, felony or other offence punishable uniler the
criminal law.
" Chap. 100 of the same statutes prescribes these duties, which are : To
j-eceive from magistrates and examine all informations, etc., connected with
•28
criminal ciiaigt'S ; if necessary, cause such oliargu:< to he fiirtlier investigated,
and to secure the attendance of witne&ses. etc. ; to institute and conduct, on
the part of tlie Crown, j)rosecutions for felonies and niisdenieanors at the
courts of (juarter sessions ; and, in the same manner as law otiicers of the
Crown, institute and jonduct similar proceedings at tlie assizes. To watch
over the conduct of cases at tlie sessions, and witliout unnecessarily interfer--
ing with private individuals who wish to piosecute, to assume wholly the
conduct of a case where justice towards tlie accused seems to demand his
interposition.
" It also is made his duty to assist the Crown otliccr in the criminal
business at the assizes, and in his absence to represent the Crown at such
court.
" If reciiiired by general regulations touciiing his office, lie is to institute
proceedings before justices of tiie peace in a variety of matters made punish-
ai)le on suininary conviction, and is empowered to institute sucli proceedings
on a coni[)laiiit in vv'riting, or as [uiblic jirosccutor, in cases wlicrein the pul)lic
interests recpiire tiic exercise of such oihce.
" He is refjuired also to advise magistrates and instruct tiieiu in respect
to criminal offences brouglit before tiie magistrate for preliminary investiga-
tion or for adjudication, and a general provision re([uires the county crown
attorney to perform siicli d;ities as may be assigned to iiim under general
regulations by the governor-in-ccuncil. IJefore he is qualified to act he must
take the oatli prescribed for the faitiiful peiformance of liis duty. Tliese are
the chief provisions respecting the county crown attorney system in Ontario,
faintly outlined.
" Before leaving the subject of the County Crown Attorney system and
public ])rosecutors I should like to quote the opinion of the celebrated Lord
Urougham, expressed in a letter to his friend, tlie Procureur-General of
France.
" After speaking of the excellent organization of the French High Courts
of Cassation : ' I confine myself for the present,' he adds, ' to the office of
public accuser, a necessary institution in every state, which we entirely want
in England.'
" ' It seems incredible that in a civilized country in wb.ich the principles
of jurisprudence have been so profoundly examined . . . an anomaly as
glaring in the machinery of our jurisprudence as leaving to chance the
execution of the criminal law should have continued down to the present day.
You will scarcely believe that when a man with us has been th" victim, either
in his person or his property, of any crime or misdemeanor, the prosecution,
the yjreferring of the accusation, sliould not be the duty of any public
functionary. The iiulividu d, who has already suffered from the conseciuence
of the offence, is bound'by the magistrate to become the public accusP'' He
has already suffered much ; it is not sufficient ; he must bring to justice those
who have inflicted this suffering u])on him. Hence spriugs a host of inconven-
iences too long to enumerate, of which I shall cite but one, and that will be
enough. Notiiing is more freciuent than the tampering with the prosecutor by
the guilty person, when he chances to be rich. I have known, at the time
when forgery w^s punishable by death, many persons ac(juitted because they
had bought off those who had been obliged to enter into recognizances to
prosecute. W hen the trial began the witness did not appear ; and one of tiie
strongest reasons in favor of the abolition of capital punishment has been found
in the great difficulty of compelling the injured persons to prosecute the
guilty. This capital defect does not exist in Scotland nor in France. Thus,
in .Scotland it never liajipens, as with us, that on the one hand the guilty
escape, and on the other that, from time to time, prosecutions are inspired
by unworthy uiotives. The (Jrand Jury affords no remedy for this evil ; on
the contrary, it is a body acting without the least responsibility, and
•2<»
freiiueiitly coniniencing a prosecution against justice. Kor as the majority
out of twentytlirec iuiors decides, we can never tell whether such or such a
juryman was one of the twelve who voted for the prosecution, or of the
eleven who were of the other opinion. '
" I h'Ave noticed somewhat in detail the county crown attorney system
of Ontario, for I desire to bring its excellent features under the notice of
honorable gentlemen from Provinces where the system does not exist, and I
can bear testimony to its value and admirable workiuL'. It is only right 1
should ad<l that without some such system to take the place of the Grand
.Jury institution I dare not say it would be safe to abolish that institution,
but with the erection of some such system throughout Canada a great and
needed reform would l)e accomplished, a more perfect criminal procedure
provided ; and the subject is one expressly reserved under the British North
America Act to the Parliament of Canada. On the grounds I have referred
to I maintain it would be in the interests of justice, secure more certainty in
punishment and be a wise and economical reform, one not difficult to accou)-
plish. How and imder what tenure crown prosecutors shoidd be appointed,
the limits of their duties, and other matters of necessary detail, it would now
be premature to enter upon, as it is outside my purpose now to discuss the
appointments retpiired, and whether made by the general government or
otherwise arranged, these considerations properly ])elonging to a matured
measure.
" I may remark that under the law in Ontario the offices of cleik of the
peace and local crown attorney were combined in the same person. This
was doubtless originally done on grounds of economy and expediency. My
own view would fiivor a learer approach to the Scotch system, which has
worked so well and drawn to it a full measure of public confidence.
" The several Provinces can abundantly supply the necessary agency. In
Ontario there are traited officers that can be utilized.
" I am myself (juite satisfied a comprehensive scheme of the character
indicated is feasible, would be calculated to secure uniformity as well as a
better and more responsible system for criminal procedure, and would
certainly not cost more than (Jrand Juries.
" Such a work is one that should be undertaken by the (Government,
with its ample means for en({uiry and looking to the ways and means.
" I have placed my notice on the paper to enable me to lay before the
government and the people of Canada what my experience has convinced me
would be a valuable reform. I hope to secure the attention of thoughtful
men, inside and outside of Parliament, to the subject.
" If I have succeeded in favorably impressing n)y honorable friend and
leader, and other honorable gentlemen in this house, I have not sjjoken in
vain. What I have said will in some way reach the government, and I hope
may receive sucli consideration as the importance of the subject entitles it to.
In that case I am not without confidence of a favorable resvdt, alid earnestly
hope, next session, at all events, to see a measure brought down dealing with
the subject ; for in the interests of sound and safe administration it should, I
think, commend itself to those who are primari'.y responsible— for the reform
proposed is based on the principle that it is the duty of the state to detect
crime, apprehend offenders and punish them, and that independently of a
private party. "
As a result of this address the government caused a circular letter to be
sent to all the Judges having permanent criminal jurisdiction in Canada,
and to the attorney general of each Province therein.
Oa the '23rd of June, 1891, Senator Gowan again returned to the subject
of Grand Juries, and delivered the following address :
30
" Hon. (ientleiuen will recollect that the session before lust 1 called
attention to tiio subject of (irand .hirios, and endea oied to prove iliat tiiey
had survived tiieir usefnlnoss. My lion, friend, now the Premier, was present
on tiiat occasion, and ! hojjcd that I had interested him witii the subject, for
I lia<l given a good deal of attention to it and I spoke with the experience of
some forty-one years in the actual exercise of functions in connection with tlie
criminal law. However that may be, with tiiat kind and courteous consideiation
for others which has won all our hearts, he was good enough to make some rather
extended ob.servations on the subject. I was gratiiied, because I fnlt that I
had at least im])ressed our Premier, then the lion, leader of the Ik use, to
some extent as to the necessity for some in((uiry, and I was gratified that I
had secured one step toward tiie attainment of the object which I liad in view.
I was glad to get some favourable expression consistent with the position lie
occupied, on the suggestions I iiad offered — at least that encpiiry should be
made, and getting ir. from such an experienced man as my hon. and learneil
frieiul. The matter went in due course to the office of the minister of justice,
and last year a circular was issued by the Honorable Sir John Thompson iid-
dressed to all the judges in Canada exercising criminal jurisdiction and to the
attorney-general of each province of the Dominion, soliciting opinions on the
subject. Had that hon. gentlenuin. Sir John 'J'hompson, pronounced against
the measure, or thought proper to shelve it, I would almost have felt I was
mistaken in my view, even if I retained my opinion, becnuse I regard iiim not
only as a great lawyer and as an able, far-steing num, and I may, if a little
aside of the (juestion, go a step further and say that I believe him to be not
merely a man of broad views, alive to securing just and erjual rights to all in
our mixed connnunity. Yes, I believe hun to be keenly desirous to secure
just and eipial rights to all without distinction or " partial affection" within
the limits of our constitution, that constitution which bind.* all our provinces
together, and which must be our guide in all our legislation. 'J"hat
counnunication was received by the judges throughout the country, and over
KM) replies were sent to the department of justice. These replies are from
some, and in fact nearly all leading legal minds in the country, and I have
not gone over them, but a sunnnary that I obtained from the Department
shows that no less than fifty of those who sent in answers are in favor of
abolition, thirty-nine against, ten doubtful, and two who have declined to
answer, so that on the whole, as far as numbers are concerned, a very
considerable majority is in favor of abolition and a very respectable
minority is against it. I have not seen and have not analysed m hat
they said on the subject. I have not been able to study the arguments
used, but I notice, taking the first three names. Judge Taschereau, one of the
al)lest lawyers in Canada, and a man who, altliough of I'rencii origin, has
produced the very ablest book on criminal law now in use — one that is a kuIc
mecnvi in every court in (^anada — is the first of those who are in favor
of abolition. Tiie next is Mr. Justice (Jwynne, also a very able criminal
lawyer, one who was engaged for many years as crown counsel, and afterwards
sat for years on the bench of the Superior Court of Ontario and now occupies
a place in tii6 Supreme Court of the Dominion. 'I'hen there is Chancellor
Boyd, whom we all know in Upper Canada to be a most eminent jurist,
while on the other side, taking tiie first three in the order that I received the
list, Attorney-! Jeneral Mowat, Chief Justice Hagarty, and Sir Thomas Gait,
all able men, hold an opposite opinion, so far fis I can make out. Perhajis I
was not so much surprised with regard to one or two of the gentlemen named,
but 1 certainly felt surprised when I saw the name of Hon. Mr. Mowat,
Attorney-(!eneral of Ontaiio, opposed to this change ; for he has been for
many years (and I have admired his conduct in taking the course he did) a
great law reformer, and the obstacles in the way of justice which ' the
wisdom of our ancestors" had placed in lii>< way — all these technical
absurdities, he bore down and toppled over without the slightest hesitation.
He was most energetic in the way of reform — in fact he was almost like a
31
hipj)opotaimi8 niHhing througli a cane brake in his ilesire tn make direct and
plain tlic path of ready jnstii.'c. W'iien I hoc ins views aii<l tiie arg'inicnts he
uses I will peihaps be able to appreciate the reasons why he occn[)ieH the
position that he does. At present all I can say is, I am somewhat smp.iised
that so able a man, and so valuable a man as a law reformer, has taUen the
view tiuit he appeal's, on this occasion, to have taken. Wiiat I ask is that
these papers be ])rf»hiced, and the reason I ask it is this: It is a
very important <|uestiou. It very .seriously touches the adniini.stration of
justice, and here we Hud one hundred men competent to form an opinion on
tlie subject— men exercised in the othce of justice, forminj^ ditlerent opinions,
s )me fifty on one side and some thirty-nine on the other, while some are
d()ul)tful. I have not gone into an analysis of provinces but I find that in
most of the provinces the judges are pretty e(|ually divided, wliile in my own
province the majority of the judges who have spoken on the subject is slightly
in favor of abolishing the system. Now, while 1 adnut, and I think would
claim, that the gi'eatest weight should be attached to their o])inions, \ must
admit also that they are not infalliVile, and with the j)roper nuiterial iiefore
them intelligent laymen can as well dispose of such matters as perha])8 the
most astute lawyer. The condition being this, that a large number are for
and a large nund)er against, the majority, however, being in favor of the
al)olition of the (irand Jury, the material is there ff»r everyone capable of
I'casoning to form a correct conclusion on the subject. I do not intend to ask,
nor do I expect immediate action. I have the fullest crmH<lence in the men
who control public affairs, and I have no doubt that at the jjroper time they
will take action. I do not propose to ff)llow up this motion with any action
this session, noi- perhajis later, if I should be convinced that the i-easoning is
against me, l)ut what t want is this: that that valualde contiibntif>n to the
discussion should be within reach of every man, layman as well as lawyer,
judges and attorneys-general —'hat it should l)e in the hands of all, to enable
everyone who takes an interest in the subject to form an intelligent opinion,
and to enai)le me who have taken some pains on the subject, to get the views
of those who differ from me."
In compliance with the request made in the foi'cgoing address by the
honorable senator the government caused a Idue book to l)e prepai'cd and
issued, containing the replies of the judges, ninety-seven in number, as well as
of the attorney -general of the respective Provinces of Ontario, \ov.\ Scotia,
British Cobunbia and Manitoba. Lengthy extracts fnmi this blue book will
l)e found in my review, and, no doubt, copies of it may be obtained fr( m the
proper (piarter by those who may desire to see the opinions of the Judges in
fXtfllKO.
OPINIONS OF SIR JOHN ABBOTT, SIR JOHN THOMPSON
AND OTHERS.
In the iiiontli of Mareli, 1889, in rejj'y to the upeeuh of tlie Honorable
Senator (Jowan, already referred to, the Honorahle Senator (now Sir .lohn)
Abbott said, as reported in Hansard: "1 am sure the iioune lias listened
witli gri*at interest, and is under deep obligation:^, to my iionorable fi'ieiid for
the study and researoli which he has devoted to this (piestion of tiie value of
the (trand Jury in the administration of justice. It is |)roba)>le that this
venerable system is periiaps getting too venerable for tlie j)resent age. Tlieie
is no doubt that it is cumbrous, and in numy otlusr respects unsatisfactory.
The progress of oiu' free constitutioiuil system, under which offences are tried
by independent ju<lges — judges entirely independent of outside influences —
has rendered the protection, whicii tlie (Jiancl .Jury was calculated to give to
tlie citizen, practically unnecessary. Tiiere is no danger now of any interfer-
ence by the Oowii, or by a powerful subject, either to cause an unjust
prosecution of an innocent person or to shield a guilty one. Sucli practices have
become practically things of the past, and for protection from them, which
was largely, no doubt, the reason for tiie existence of the (irand Jury, that
institution is no longer necessaiy. The preliminary eiKiuiiy, it seems to me, so
fir as it is necessary, into (jff'ences which liave already been investigated by a
magistrate, can best be made liy a pei.Non trained for tiic ])urpose ; and
probably sucli an officer as my lionoral)le friend has indicated would be a much
more satisfactory means of making this preliminary inquiry than a tribunal
composed of a number of gentlemen who are selected rather witii respect to
t!ie amount of property wiiicii they iiappen to possess than with reference to
any special fitness whicii they may be supposed to have for making svich an
in(iulry. It would be extremely probable, as any one might of himself judge,
that the results of a system of that description would be precisely such as my
honorable friend has unearthed and lias disclosed to us during liis address.
Hut at the same time it must be recollected that the great l)enefits wliijh this
anticjuated system has conferred upon the people in the past, tiie security, the
protection, which it afforded them through centuries, has greatly attaciied
the people to the institution of the jury ; and it would l)e tlaiigerous and
unpopular with the people generally to make any attempt to disparage the
efficiency, the position, the power or the advantages of tlie jury system in any
phase of it wliatever. It is to be feared, therefore, tliat at this moment
public opinion has not reached a j)oint where it will be safe or judicious to
attempt to do away entirely with tiie (Jrand Jury system, and substitute for
it any other, no matter how well conceived it may be. I can say, however, in
answer to my honorable friend's (juestion, that tiie attention of tlie govern-
ment has been attracted to this (juestion for a long time past, and they have
had it under very serious consideration ; and I may promise liim tiiat as soon
as the tendency of public opinion is such as to justify an attempt to remove
this tribunal altogether from the administratifni of the law, the government
, will be prepared with a measure to substitute for it one which will be
calculated to perforin all tiie duties of the ancient (Irand Jury in a more
satisfactory, a more speedy and a more economical manner. It will be
impossible for me to state at the moment what precise description of officer
would be substituted for a (irand Jury, as my honorable friend asks me to
da, l)ut that will l)e a subject whicii will, of course, tvipiire the careful
consideration of the government ; and I hope before long, periiaps next
session, that tlie governinent may be aide to present a measure having the
tendency which my honoralile friend's address indicates, that he desires,
and wiiich I tiiink iiis address is very well calculated to liastcn."
lV.i
Ah tliu Montreal llnrald Hiiys. uditoiiiilly : " Mr. Alihntt's luinarkH will,
witiioiit 'liml)l, vuiy iintoriiiliy MlroiigtluMi lliu pDHilinii tiikfii hy Soiiiitof
fjowaii. It is olt)!ir that \\\v foiimsr Itolievc.i the (Jiuml .liity to iiave lost its
uatifuliiosH, thou^li liL' is not prop ireil to advocate its iiiiiiiediate aholition."
The Halifax " Moniiiif/ Ih-rald," in coiniuentiiig on Sir .lohn AI>l)ott's
remarks, says as follows : " It is our o|)inion that in tin; I'rovinc^e of Nova
Se<)tia tiio people! are already ])repared for the complete aliolition of the
lirand thiry system without further delay. It may he as Senatoi' AMxitt
suggests, that in other portions of the Dominion public opinion is not thus far
advanced ; but whenever the g.)vernment may ilecide to deal with the matter
we do not doubt but the reform proposed will meet with hearly popular
approval."
Sir John Thompson, in moving the second reading of his bill respecting
the crinunal law in A|)ril last, is reported in llaiinard to hwv. referrecl to this
subject as follows : " The attention of the public has been directed very
consideiably to one change which was mooted in connection with the re organ-
ization of the law relating to criminal nritter.s and criminal procedure, and
that is the proposed aljolitiou f)f the system of indictment by (Jrand Jury.
Tlie attention of parlia'uent and the pui)lic has l)ei!n directed to that (juestion
very f()rcil)ly, indeed, by a member of the otlier brancii of Parliament, a
member to wiiom, I am suro, b )th f[ousus owe a great deal of gratitude for
the pains and the c.ire and the attention he has devoted to legislation durini^
the many years of a useful and honorable life. 1 refer to Senator (Jowan. He
moved in the matter a year f)r two ago, and it wa.s thought best that the
attention of the public should be drawn even more strongly to the ((uestion
than it was by the remarks he matle on the subject in the Senate. The result
was, as the House may remember, that a cii-cular was sent to all the judges in
the country who have jjcrmanent criminal jurisdiction, and indeed all the
officers charged with criminal prosecutions, calling their attention to the
change which that learned gentleman thought desii'able, and asking their
opinions as to its proj)riety and ex])ediency. It was felt that the opinions of
those who are connected with the ailministration of criminal justice and have
its cnre from time to time woidd be of groat assistance tf) Parliament in
franung any change that might be thought desirable ; and we have had in
response to that a great number of replies, most o^ which have been
published, and some of which have come to hand since the publication of the
returns by order of Parliament. The opinions uj)on that subject, by those
who were thus addressed, were very divided indeed. Most of the .Judges
who are accustomed to administer justice without juries in ordinary proceed-
ings were in favor of the change. The others were divided upon the subject ;
and it is impossible to deny, in view of so strong a division of opinion on the
subject, that it seems unwise, in connection with this measure, to foi-ce that
provision on the attention of I'arlianient at present. I must say that I concur
personally in the opinion expressed in another place by the learned gentlenum
to whom I have made ;efeieuce, and 1 think that in many ros})ects the
administration of justice would be improved if we dispensed with the inter-
vention of Granil Juries."
.Sir John then refers to the disputed (juestion of jurisdiction, to which I
hereafterrefer,andtothe<iuestionof iheunreasonableness of the expectaticm that
Grand Jurors should be expected to give any expression of opinion favorable t(j
the discontinuance of their functions, although, as he remaiks, the jurors of
the province where he had practiced (Nova Scoiia) had nearly always been in
favor of the discontinuance of their services, as they considered them onei'oua
and unimportant.
He then proceeds : " There are two strong reasons that induce me to
delay any reejuest to Parliament to alter the law with regard to this system.
One is the opinion expressed l)y high authority that, for the present at least,
a continuance of the functions of (Jraiul .Jurors lead to a large body of
•M
reRpoctahlc jHM-HoiiM in the coiiiinunity \te'\i\n proaent at the exercise of the
fiiMctioim of tilt' court, aiid U'lid to thcii- asHiHtaiici! in th<! exereiHc of those
functionH, the ro.sult of which is Haid to ho, and I l)oliuvu it to l)o, that these
persons liave tlieir conti(h'nce in t)ie system of justice as adniiniHteied in this
coiintrv incioast'd, they feel a greater co opiiation an<l sympathy witii the
administration ; and to some extent additional i)ul)licity among the hest classes
of the community is, in that way, given to the proceedings in our coui-ts of
justice."
Sir John concludes his renuirks with the consideration of the (]ue8tion of
what procfidure should take the place of the (Jrand .Jury, and this portion of
his address I quote hereaftei' at length, under tliat head of the subject.
It is (|uite evident that the Ministei' of .Justice is, like Sir .John Ahhott,
personally in favor of the abolition of the system, hut that before permitting
a measure to that etrect to be introduced they would like to have an expression
of opinion from the pul)lic.
(li'cat changes in the law or in legal procedure should be cautiously nuule
'I'o hasten slowly is often evidence of tlie highest wisdom, but if it can be
siiewn, as many eminent men think it can, that the reasons for the retention
of the system are largely sentimental, then it shoulil be swept away.
The Honoral)le Senator Trudel, when this matter was brought up first by
the Honorable Senator (iowan, stated that, " \V ith reference to the suggestion
of the honorable gentleman from IJarrie as to the advantages of having a
crown prosecutor — that is, an officer whose duty would be to en(|uire into
crimes and bring such matters before the courts, without the co-operation of
the private prosecutor — I agree with the honorable gentleman to a great
extent. My honorable friend made a comparison between the system existing
in Scotland and the system in France. I think the system which prevails in
Canada leads to compounding of felonies. an<l in many cases parties who should
go l)efore the criminal court and should be punished, enjoy innuunity from
punishment because they have money, and have been left in a ])osition to
settle the matter with the private prosecutor. I had myself, though a lawyer,
occasion to l)ring personally a criminal accusation before a court of justice,
and the costs 1 incurred and the result of the whole thing were such that I
decided that if [ were attacked in th<! future i would try to defend myself,
i)ut should never look for redress to a criminal court. In fact to expect the
individual who is wronged to take the initiative proceedings, and to incur all
the responsibility and all the costs of criminal procedure, places such a burden
upon his shouldeis that in many instances it is a denial of ju.sticc. This means
immunity ti the guilty ])arty,so that I think this is a matter which commends
itself to the serious consideration of the (lovernment."
A SHORT REVIEW OF THE OPINIONS AND CRITICISMS
OF THOSE JUDGES WHO OPPOSE ABOLHRN.
" 'I'is hard to sny, if (greater want uf skill
Appear in writing iir injucltting ill ',
but, >>f tliu two, le>s dangerous is th' offence
To tire our rtiience, than mislead our Ktn»e.
— PoPK.
A few of the judgoH in coiiBidcriiig tliu <|UeHtion of the ubolilion of the
(Ji'iind .lury simply Hiiy they aix- opposed to doing so, l>iit giv<! no iTiiHonH
tliorefof, or siiggust what shoidd take its phife, and many otluMs while
objecting to tilt! j)ro|)OHed reform and stating tiieir reasons, are apparently
under the impression tliat only tlieir o])iMion as to the ex|)edienoy of doing
away entirely with tlie system was desired, and that they weie not required to
suggest what should ))e substituted for it.
Possibly these latter may have considered that as the circidar addressed
to them by the Minister of Justice did not, in so many worils, actually require
them to deal with this bianch of the subject they might be thought othcious
if they did so. In both cases no o])inion has been given on the subject of a
satisfactory substitute, which is unfortiuuite.
The aigumcnts, therefore, of those who favoi' the retention of the (Jrand
Jurj' and who do not consider the question of a substitute, are of little or no
value, as they proceed entirely on an erroneous assumption. Possibly many
of these judges, if they had consi<lered the matter, would luive been favor-
able to abolition on condition that either the county attorney system, or
that of the procurator fiscal, were substituted.
Those who will read the renuirks of the judges will observe that there is
a diirereuce of opiiuon among them ns to the desirability f)r otherwise of
apjjoinliug the crown attorney as a 8id)stitute for the (Jraml Jury. The
judges who are o])j)osed to his acting in this ca))acity say that there would
be great danger if he were appointed to perform these tluties, on account of
his being paiil by fees. In reply to this it is said that if this should be so
considered then it must be a mistake to continue the county attorney in the
performance of the duties he now discharges, as they are largely those of the
(Jrand dury, and that there is (juite as much danger of justice being defeated
by the latter body, as now constituted, as there would be were the county
attorney (pecuniary interest and all) given sole charge of the bills of
indictment.
Undoubtedly the chief argument employed by those who advocate the
retention of the (Jranl Jury is, that it is an ancient and timelionr)red
institution, which has done yeoman service in the past by standing as a shield
or bulwark between the crown on the one hand and the subject f)n the other,
and they assert that it still possesses its ancient power in this regard, and is
now, what it was in days of yore, the palladium and S!ifeguard of our liberties.
These friends of the system say that any change therein would be a dangerous
innovation, and they remind one of the exalted opinion Sii' Leicester Dedlock,
in Hleak House, had of the Conrtof Chancery, who thouLdit that court, "even if it
should involve an occasional delay of justice, and a trilling amount of confusion
as a something, devised in conjunction with a variety of other somethings, by
the perfection of hunuiu wisdom, for the eternal settlement (hunuuily speaking)
of everything" and who was " upon the whole of a fixed opinion, that to give
the sanction of his countenance to any complaints respecting it, would be to
encourage some person in the lower classes to ise up somewhere — like Wat
30
Tyler," and who appeared to liave a " stately liking for the legal repetitions
and prolixities as ranging among the national bulwarks."
Veneration for what has long been wont and custom looks back upon th^
past as the acme of perfection because it is old : there are those in religion a^
well as those who practice law, who maintain that what belongs to anti(iuity
iind to the fathers lias not been improved l)y the reforms of Inter times, — for
instance I would mention the ancient })ractice in arraigning a prisoner at the
bar, — " .John Doe, liold up thy rigiit hand!" Wliereupon tlie accused held
up his right liand, if he had one, and if lie had no riglit iiand he was excused,
without contempt of coui-t, by being told, " Well, hold up thy i kft hand !"
I do not recollect, as my reading does not serve me, what happened if he had
no hand at all. Tliis form was intended to distinguish the prisoner from the
bystandeis. Then the clerk of arraigns proceeded thus, " Von are indicted
in manner following," and then proceeding with the read'nc of the indictment
to the close, the (juestion was always put, " How say you, John Doe, are you
guilty or not guilty ?" Then the prisoner would say. " Not guilty, my lord !"
The next question proceeded, " How wilt thou be tried," the answer being,
"By(irodand my country," the prayerful reflection of the clerk was then
added, " God send thee a good deliverance," — a praj'er which was often
followed by the implored ac(juittal. On one occasion Lord Norbury in
sentencing a poor culprit, used the customary formula, " and may tlie Lord
have mercy on your soul, ' to which the condemned num added the rejoinder,
" There are few men have lucU, my lord, after (/o«r prayers."
As Senator Oowan wittily and rather suggestively remarks. " few in the
present day fear that arbitrary power will venture to raise its haiuls in the
courts or elsewhere, and, if it did, the people of this countiy would not fight
behind the feeble barricade of a (irand Jury. The days of arbitrary power
have happily passed. A spirit to break down anythiu:^ because it is old
should be avoided, but to maintain ii worn-f)ut institution, because it is
ancient, must be an absurdity which can only be accounted for by the
veneration for anticiuity which seems to overshadow in some things the
human jnind." He says fuither that popular lil>erty and pojjular rights are
happily estal)lished in this country tm a sure basis, and are understood and
valued, and he utterly denied that firand Juries are m any sense the
palladi\im of cither.
It has been sam that two of the main reasons for the existence of the
(Jrand Jury in early times, were : Ist, The protection of the citizen ^rom
vindictive prosecution by the crown or by some powerful oppressor ; and,
'2n(l, the great inHucnce it possessed and exerted in preventing the escape of
criminals who could invoke the aid of powerful friends.
Under our constitutional and democratic systein of government danger
from these ijuarters need never again be apprehended.
That the (Jrand Jury in its inception and for long years theieafter .served
a useful purpose, is cheerfully admitted, but those were time^ when the crown
exercised most aibitrary powers, when judges were its creatures, and when
justices oppressively sent persons to prison who were accused of trivial or
political offences, l)ut at the ])resent day in the few cases wiiich come before
it, the utility of the (irand Jury de])ends very nnich on the .iharacter of the
justices, and whenever stipendiary magistrates connnit for trial, its interposi-
tion is entirely superfluous and unnecessary, and even if the connnitting
magistrate siiould chance to be an unlearned man, the prudence of subjecting
his open, iionest and above-board (though possibly rougli and ready) decision
to tlie .supervision and scrutiny of sucii an irrespo- sible, unskilled and secret
tribunal as the (jlrand Jury is extremely doubtful.
Great stress is laid by several f)f the judges on what they call the
education il advantage" afforded by the congregating together of the (irand
Jury. Now, let these so-called advantages l)e examined into. Tiie Giand
37
Jury appear at the opening of the court, they hear from the presiding judge a
few remarks addressed to them in necessarily technical and j)rofessional
language, the meaning of which many of them do not understand. From the
time they enter upon the performance of their duties until they make their
final presentment they arc in secret sessiim. They are rarely in court, except
when they return their bills, and even then, only half a dozen or so appear.
They do not remain in the foart-room enjoying the :*dvantages possessed by a
petit jury who are engaged day after day in hearing evidence, weighing facts
under the careful supervision and direction of the court, listening to able
speeches and arguments of counsel, gaining a useful knowledge of law and
business and performing their duties under the censorship of the press and
the public.
To e Jiat two or three days' attendance as a Grand Juror at court, once
perhaps '.t <jvery five or six years, is an educator, is not the kind of argument
that woi d, on the trial of an action before them, be tolerated by the learned
gentlemen who advance it.
Can anybody point out what particular educational ad -antages are
afforded l)y the assemliling together for two or three days, in a private room,
of twenty-three gentlemen., "nlearned in the law, and wholly unskilled in the
consideration of matters requiring no mean amount of legal knowledge '!
These worthy citizens are largely strangeis to one another, draw, as they
are from all parts of the county, and three-fourths of them are utterly
unacquainted with the most elementary forms of legal procedure, the exam-
ination of witnes.ses or the sifting of evidence, thus leaving to the residue of
their number the management of important matters which are supposed to
require the whole panel.
Nevertheless, some of the friends of the Grand Jury, in pleading for its
life, dwell upon the importance of thus periodically collecting together the
principal yeomen and squires in order that they may h'-we an op})ortunity of
being educated in legal matters by listening to a judge's one charge and by
solemnly deliberating in secret over such ciiminal matters as may come before
them. I think that if an educating influence is desired the (irand Jury
system does not answer the purpose, but that it is actually a deterrent, inas-
ninch as its continuance withholds from the petit jury, (who are clearly in a
position to learn something from listening to the proceedings of the courts), a
better educateii and more substantial class of men. When, therefore, this
argument for the continued existence of the (irand Jury is analyzed it wdl be
seen that the;e is not only nothing ii. it, but that it in fact operates as a very
strong reason in favor of the abrogation of the system. Take, for instance,
two men of etiual intelligence, place one on the Grand Jury and the other on
the petit jury at the same assize. Will it be for one moment pretended that
the (irand Juror has learned more than the other as a result of his attendance ?
Will it not be far more likely that the petit juror has increasetl his stock of
legal knowledge to a greater extent than his brother juror '! True, it may be
said that the abrogation of the Grand Jury system will wholly i-elease from
service between twenty and twenty-three men at each court. While this may
be so the tone of the petit jury would be elevated by the infusion of more
intelligent men into its ranks, and although the whole number of jurois will
be reduced, those best capable of learning will l)e selected to serve, including
all those who would otherwise have been on the Grand Juy panel, and the
result will be '\ decided gain to the connnunity.
As the Penetanguishene Herald says : " The idea that the attendance of
the Graiul Jurors at the sessions and assizes is an educational factor for the
community loses no force by the abolition of that body. Cutting adrift the
(irand Jurors leaves better material available for the petit jury. The attend-
ance of the men upon that jury who formerly served as (irand Jurors, would
better facilitate justice at petit jurors' hands."' Judge Deacon says "that
llic value ot any education in law or ciiniinal })ioL'e(lure which the members of
any Graml .)ury can possibly obtain at any attenilan e upon a court must be
exceeding small, and is, in my o[»inion, greatly counterbalanced by the mischief
they can do when not under the eye of the court."
There is another matter which should not ))e lost sight of in this
connection. It is well known that, a^ between the (irand .luiy and the petit
jury, the latter has always been considered as the more unlearned tril)unal.
'J'he very manner in which its meml)ers are selected gives color to this as
shewing that they are not believed by the selectors to be, in the words of the
statute, as " di.screet as their brethi-en of the (iiand .lury, who are always
chosen first, so that this l)clief iy not altogether groundless, and innumerable
cxtraordinaiy ii'id ridiculou.* verdicts, arrived at no one knows how, have but
helped t) contirm the idea.
Barham in the " Ingoldsby Legends" has thus immortalized a certain
.i">y:
" Last of .tH, may rs ant! magistrates, never lie rude
I'o juries ! They're people who iiwn't be pooh-pooh V. I
Kspecially Saiiilwich ones — no one can say
But liiriisclf may come umier their chitches one day ;
They then may pay otV. In kind any scofl.
And, turiiiuK tlii:ir late verdict quite ' wisey wersey '
'Acquit you ' and not recommend you to mercy."*
It is therefore high time that the standard of this i)ody shotdd be
elevated and improved. Ke{)lacing the least well-informed of them with men
who woidd be lilterated from service on the (irand ilury would have the
desired eti'ecl, and the result could not fail to be other than eminently satisfac-
tory, not only to the general ])ublic, interested in seeing the criminal law
])roperly administered ami respected, liut to that large class of civil suitors
who, when they p ly for it, should certainly have the right to expect that
their cases would bo tried by a body possessing at least ordinary intelligence.
Now and then a judge gets the better of one of those juries " who know
all about it.'" I remember a case of this character which came before the
Honorable Chief .Justice Gait some yeai-s ago. On the occasion referred to a
young n an was ari'aigned on a charge of having stolen a box of cigars. The
evidence had, in their opiiuon, been strong enough to warrant the jiu'y,
notwithstanding the judge's .strong charge in the prisoner's favor, in finding a
verdict of guilty. His Lordship, one of the most ten<ler-liearted of men. fs
everybody knows, in sentencing the trembling culprit did so in the most
solemn tones in, aginable to the iollowing effect : "Prisoner at the iwr, have
you anything to say why the sentence of the coiu't should not be pronounced
upon you for tlie felony of which you have i)een convicted?" Tiie prisoner
thereupon blurted out something in the usual way to the effect that he was
innocent of the charge, whereupon the chief justice said : " Prisoner, you
have been found guilty by the jury of a serious offence, a very serious offence,
indeed. Now, you kntiw, ])risoner, it was very wrong of ycu to take, as the
jury have considered you ilid, this box of cigars, and it only remains for me to
sentence you. Tiie sentence and judgment of the court upon you for the felony
of which you have been convicted by the jury is that yrni be confined in
the common jail of this county for tiie period of twenty four hours, and
that you be then discharge '. '" A swnteiice which met the approval of the
general public who had hearil the case.
In another case, tried before Mr. Justice Maule, His Lordship thug
addressed a culprit : " Prisoner at the bar, your counsel thinks you
*" At a (juarter sessions lielil at Sandwich, in England, on
Tuesday, the 8th of April, 184,'j, Thomas Jones, mariner, aged seventeen, was
tried for st«aliiig a jacket, value ten shillings. The jury, after a patient
hearing, found hjil) ' not guilty ' and recommended him to mercy I "
39
innocent ; I think so too ; hut a jury of your own eountiynien, in tlie exercise
of such common sense as they possess, wliicli does not a])j)eiir to he niucli, have
found you guilty, and it remains that I shouhl ])ass upon you tlie sentence of
tlie law. 'i'hat sentence is tliat you he kej)t in im])risonment for one day, and
us that day was yesterday, you may go ahout your husini'Srs." The fortunate
prisoner was tliereupon released and " went nhout iiis l)usiness,"' tiiinking, no
iloul)t, that law was an iinconnnonly puzzling tiling.
A numher of the judges treat of the importance which attaches lo the
general jiuhlic heing allowed to think that justice is administered in as pure
and enlightened a form as possihle, and tiiat notiiing so conduces to tiiis as
allowing citizens of suhstance to take an imjioitant pait in judicial jiioceed-
ings ; and tiiat this knowledge must he productive of contentment which lies
at or near tiie hasis of all gootl government. One leiirned judge says that
through them tiie hody of the ])eople can he reached and a healthy puhlic tone
created, whenever, in tiie pul)lic interest, the judges feel called ujxtn to direct
attention to new legislation, or evils re(|uiring retlix'ss, or legislati\ e interfer-
ence, or when dangers thi'eaten our system hy the cond)inati()n of forces,
political or otherwise. A wise deliverame on the suhjcct in chaiges to the
(jrand Jury does much to awaken interest, remedy ahuses, ex])lain fallacies
and generally assist in tlie proper administration of afhiirs. 'J he judges, he
argues, are ahle through the (Jrand .Fury to pies-s upon the puhlic the
necessities for various reforms, such as j)rison refoiin caie (>f non-criminal
poor, improvements in cf)urt houses, jails, etc., and to receive from them many
suggestions indicating the trend of outside thought and o])inion ; their
attendance is of great puhlic advantage, they hecome acquainted with the
working of our system of juiisprudence, familiarized with many of the
pi'inciples of law and are prepared to suggest stejis to he taken in tlie aiviend-
nient of law or of hringing in new statutes, which to tiie lay mind seem
necessary : from them come our justices of the jicacc, legislators and many
officials. Another learned judge says that as an educator f)f tlie people it has
great merit, as an insjiirer of love of law and order and resjiect foi- constituted
authority, its influence is heyond (juestion. It hrings the hest men of the
county together. It gives the people a inobt invaluahle insight into the
manner in which justice is administered and is a factor in elevating the tone
of society, and we have the coinhination of general conimon kno\\ledge on the
part of a jury with the experience a: d legal tiainiiig of a judge. A learned
county coui't judge says that thi-ough the judge's iiddress to iiiem, the
various changes in the law ar-e made known to them and through them to the
people. Their attendance faniiliaiizes them with the modes of the adminis-
tration of justice and tiie jiroceduie of the courts and has a tendency to keej)
people out of petty and fr-ivolous disputes causing neeilless and exjiensive
litigation. Selected as its memhei's are fr-oni all jiai'ts of the county, and
representing all shades of [nihlic opiiiioii, they discuss the sevei'al topics laid
hefor-e them Ity the juilges and on tiieii- I'eturii lo their homes tiiey take with
them the ideas they have acciuired, and thus puhlic ojiinion is moulded, the
reeves of the municipalities are instructed, and the hands of the county
council sti-engthened, when the time comes to make any necessary
apnropriation.
The changes are r'ung at great length upon these advantages, with sliglit
f 'uinge of phraseology, hut, in the main, agreeing with what I have written.
It would he imjiossihie to give all the o[)inions on these points at length, nor
would it answer any useful jiur-jrose to do so.
In reply to these ai'gunicnts I can only repeat wliat I have alieaily pointed
orrt in another jilace, viz., that in consecjuerice of the ver-y hr'ief period in
which the (irand .Jury remain in the court room, their opjior trinities for
acquiring the knowledge wliiciii is considereil so valuahle, are limited to hear -
inga short ciiai'ge fi-om a pr'esiding judge, wiiich sur-ely must lie consider'ed a
vei-y homeopathic^ dose of politieo-legal-irrunicipal econonry to lie disseminated
40
" when they I'eturn to their homes" among tlie large contingent of the l)0(ly-
politic whicli they are supposed to represent. With the abolition of the
present system, and with a competent substitute in its place, none of these
advantages, if they are such, would be lost, but, on the contrary, much more
extensive opportunities would l)e afforded to xn improved petit jury for
learning these and many other things, so that the continuance of tlie system as at
present is, at this moment, actually operating disadvantageously to the
country, as it prevents the diffusion of much more valuable legal and general
knowledge.
Again, it is argued that when an accused person is discharged by the " no
bill " of a (irand Jury, he occupies a better position in the eyes of the public
thin if lie had been placed in the dock, and acquitted after a trial in court.
Now, what is the fact, tlie Grand Jury is a tribunal which sits in secret, none
of its proceedings in the investigation of a case are known to the public. Kor
augiit the latter know, tlie accused may have escaped by reason of some flaw
in the indictment, or through want of thorougli entjuiry, or by a misconcep-
tion of tiie law or in consequence of the favorable leaning of a friend or two,
and the tender-heai'tedness of others on the jury — in fact through any of a
variety of lucky contingencies. However honorable some people might think
an accused person's accjuittal in this "no bill" way to be, there are always a
great many more who regard the secret and luiexplained proceedings of a
Grand Jury as anything but a clearing of his character, whereas, if he had
stootl his trial in open court and been lionorably acquitted, no malicious busy-
body could go al)out insinuating that he had got off by what is populai'ly
termed a "nuke." On this point tlie Honorable Attorney-General Longley,
of Nova Scotii, says : "In most eases when a party is charged witl\ crime it
is his interest to court a public trial. Even when innocent his innocence can
be best vindicated after a public investigation. It very often happens that
with a cloud of suspicious circumstances surrounding the case the public will
not accept the l)ald statement of ' no bill' from a (irand Jury as a vindica-
tion." He refers to the fact that on several occasions since he has held his
ortice he has lieen asked to tile a nolle proncqui, but that in the interest of the
accused he has declined to do so, as he has felt such a course would fail to
satisfy the public and leave the enemies of the accused in a position to say
that if tliere had not bean a special interposition a conviction would have been
obtained. In every case the wisdom of his course hid been justified by the
complete vindication of the accused persons.
He further says : "I have known instances of parties consenting to the
trial under the Speedy Trials Act who were, so far as could be judged,
innocent of the charge, but who sought the earliest opportunity of ca public
vindication. This leads me to conclude that individuals in this country do
not place a priceless value upon that institution which is supposed to guard
them from the horrors of a public investigation. Whencnce a charge of crime
is preferred against a man supported by evidence, either of a direct or circum-
stantial character, the finger of suspicion is at once pointed toward him, and
this can be best removed by an investigation of the most public character."
His Honor Judge Deacon says on this point : "A really innocent person
will generally desire a public and open vindication, and will not be content
with a ' no bill ' or other suppression of the ciiarge."
Judge Hain says : " ."Should an innocent man be committed, his character
will be more fully and satisfactorily vindicated by the trial and acquittal by
a common jury, than by a secret investigation before a Gian''. Jury."
Some years ago the late Chief Justice Cameron addressed a Grand Jury
on tills question, among other things, referring to the disgrace felt by an
innocent person when put on trial. His Loidship appeared to overlook that
a man may he put in jail by order of a magistrate after a preliminary trial
and kept tlure. \i there is any disgrace, the being sent to jail is surely
41
greater than being placed in the dock. The truth is, there may be no disgrace
either in the doclc or in tiie jail, nor is there if a man l)e subsecjuently
ac(|nitte(l. But tlie innocent nia-i would naturally prefer to have his
innocence established upon a pul)lic, open enquiry, instead of being simply
allowed to go on the " no bill " of a secret tribunal.
Some of the judges dwell upon the dangers which occasionally arise from
the conunittals made l)y an inexperienced and initrained magistracy, who, not
having acijuired a legal education, are not conversant with the rules of
evidence, and it is asserted tiuit tlie Grand Jury act as a wholesome corrective
of this, which would be lost were tiie system abolisiied.
There would be considerable foice in this argument if the Orand Jury was
swept away entirely, and no adequate and proper substitute provided to
replace it. As, however, the lietter opinion appears to be, as already stated,
that it would not l)e advisable to abrogate the functions of tlie (Jrand Jury
unless such sul)stitute was j)rovided, all tiie arguments liased on the ground of
danger arising from this source must necessarily fall to the ground.
Very few wlio favor the abolition of tiie (Jrand Jury desire that tiie
magistracy of tiie country sliall take its place. Tiiere are sucli serious and
obvious oljjections to tliis course tliat 1 do not consider it wortii wliile
^ further to discuss tlie point, as there slioiild, manifestly be, as most people
admit, some triliunal interpf)sed lietween the committing magistrate and the
prisoner's dock. For, wliile occasionally a capable magistrate may be found
fully competent to dispose intelligently of tiie more serious cases whicli might
come before liim, tlie average justice of tlie peace is not fit eitiier by e(]ucation
or training to do so, and, indeed, would not care to undertake tlie additional
responsil)ility.
A few of those who consider that it would be better "to leave well
enougli alone," appear to think that tlie question of expense is a mere
b igatelle, and should not for a moment, be allowed to weigli against the
otlier excellencies wliicli tiiey discover in the system. Tlie general public,
viewing tlie matter from tlie standpoint of tlie long-suffering and already too
much governed tax-payer, may very justly say, that, before agreeing to this
judicial argument, they would like it to be confronted with some reliable
figures, in order that they miglit judge for themselves whether they are not
paying too mucli for tliis mere matter of sentiment.
From a comparative return for the five years ending in 1880, compiled by
the county treasurer of Nortliumberland and Durham, in the Province ef
Ontario, and set out in the return to the Minister of Justi:;e already referred
to, I have ascertained that tiie average yearly cost of the (irand Jury in those
united counties, for attendance and sheriffs fees alone, was $1,020.70. To
tliese sliould be added the feca of the clerk of the peace, the selectors, the
justices, additional fees to tlie sheriff, the expenses of ballotting, crier's and
constable's fees, and the additional per diem allowance \vliich the jurors
receive since the passing of the recent Ontario statute. These additional
sums would not be less than §180, and thus tlie total would be .ii!l,'200 per
annum.
In the large County of Bruce the average is very much higher— the per
diem allowance and services by the slieriff amounting alone to $2,*2r),3.
In Middlesex tlie per diem allowance alone, paid in I88ij to tlie (irand
Jury, was $1,1(55.40 before the increase. In Hastings, Judge PValick makes
the average paid to Oraiid Jurors alone for tiie five years ending with 18!K),
and before the increase, $788.74 In Leeds and (Jrenville, according to
Judge Macdonald, the total before the increase wfis about $H'u. In Elgin,
which is a small county, the average amount per annum all told for the last
five years would not fall far sliort of $1,000.
The estimates for Hastings and Leeds and Grenville are, I tliink, too
low, and I imagine that a fair average of all the expenses causetl by the
42
system in Ontario would be about |!1,4()() for each county, tbus making the
aggregate for tiie thirty-seven judicial districts $;")!, S(M). I find that the Lmi^
Journal and some other papers a few years ago fixed the gross sum at $r)0,00()
before the increase in the per diem allowance.
As suggested in another place, if the (irand Jury should be abrogated and
a public j)ro8ecutor be appointed for a gioup of, say, three counties, tliere
would be a fund of $1,400 for each county, making I5!4,'200 for Die whole grou[).
Surely a thoroughly competent person could be foun.l to accej)t the position
for each group, for one-lialf the last named sum, and tiius a saving be effected
for each county of $700, and with an improved system to take the place f)f the
old one.
The figures I have used are from an (Ontario standpoint ; if in otiier
provinces the amounts are smaller, as woidd appear to be tiie case, at least in
Nova Scotia, a<;cording to Mr. Justice Townshen<l, who places tlie gross sum
Eer annum at tlie exceedingly snuill sum of $200, there wouhl eitiicr iiave to
e more counties grouped or a reduction in tiie salary of tlie oHicial. These
are matters of detail which could easily be arranged.
If the amount I have mentioned should not be considered adc(juate to
secure the services of a first-class person, then the suggestion nuide by The
Canada Lav Journnl of January, 18il'2, might be adopted, wliicii is as follows ;
" Five Crown officers could be appointed for the provirce (Ontario), one for
each circuit, and might be paid a salary of $;i,000 a year eacii, and then tlie
Province would b(! a gainer to a considerable extent financially. It costs for
Crown counsel about $10,000 per annum out of the provincial treasury, so
that the change we suggest would re(|uire only $li"),0(M) additional, and the
county would therefore be relieved from tlie wiiole cost of the present system.
And it occurs to us that the suggestion that an ofiicial, like a circuit ('rown
officer, would be more subject to bias and partiality than the (irand Juries
are, is entirely gratuitous. The same I'emark would apply to the judges
themselves, if there was anything in it, l)ut the fact that the judges arc not
influenced, is a convincing reason for believing that a Crown officer, jiaid a
salary ecjuivalent to that of a superior court judge, and selected, not on
politic.nl but on mei'itorious giounds, would be just as respectable, just as
unapproachable and just as pure as the purest judge on the bench."
One learned judge says that "the great objection to the (irand Juiy
system seemed to be its expensiveness ; but there were other institutions in
the county against which the argument of expense could be employed, but
which could not at all be disjiensed with." His Lordship does not intimate
what other institutions he refers to, but surely that siiould be no reason for
continuing the (irand Jury if it can be shewn that a more efficient, or even an
equally efficient, substitute can be provided at one-half the expense ; indeed,
what it has to do with the point I have nqt been able to discover.
His Honor Judge Hughes says on this subject ; " The great expense of
the present system of administeiing criminal law, where the intervention of
the (irand Jury is employed, is not its most serious feature, but it is wortliy
of consideration and investigation. The money wasted in tliat way miglit lie
profitably employed in setting and keeping on foot a more efficient and
expeditious and less tedious mode of procedure, and I know of no case of such
a public cliaracter, that the remedy I suggest could not be sufficient for, and
more satisfactory than, that of entrusting sucii weigiity res[)onsibilities to a
(Jraiid Jury, whicli is largely t^omjiosed of a partisan magistracy, appointed
by a partisan administration, which governs by a party and for a party, as
has been the case for upwards of eighteen years in Ontario.
All the fees and the mileage expended, and all the unnecessary delays
incident to the present mode of proceeding before a (Jrand Jury, and its
attendant and needless expense, if not entirely saved, would be very much
lepsened, and might be better applied in paying the sakry of a public
S
43
prosecutor, 8uoli us 1 suggeBt, and a tixc<l salary ami the truvelling exiieiiseH
of an etiicient stijiendiary or jxilico niagistiate as well, all of whiuli might be
provided for at the same time, at less expense. 'Die large expenditure
connected witli the printing and circulating statutes, gratuitously, to the
immense body of honorarj', non-acting magistrates (who are now nominally
((ualilied under commissions of the peace in the several counties in Ontario
might he utilized and economized towards paying those salaries."
His Honor. Judge Reynolds on this jjoint says : "Those who clamor for
the abolition of the system talk of the great expense and waste of time it
involves, hut we should all remember that every man owes it to his country
that he should sacrifice his time and means to secui'e good government, the
jjure and unsullied iidminislration of justice and tiie blessings of lii)erty
untranmielled. "
The avei'age jtiryman will say, that, while all this sounds very well, it
will not go down with him, and that he must, in addition to the compliment
conveyed by the learned gentleman, 1-e paiil the sum of two dollars per day
and mileagy ; and that, although he may owe to the country all that these
high-sounding phrases intimate he does, the county must pay him his per diem
allowance (not forgetting the mileage), and thus enable him to leturii it to the
tax ct)llector when that functionaiy is on his rounds.
While the learned j'dge is no doubt right in saying we should all
remend)er what he so patriotically and generously says on this point, I very
much fear that (irand Jurymen, about pay day, are trout)led with poor
memories, and will accept what the law allots them without any twinges of
conscience, allowing the patriotic part to be taken for what it is worth.
It is a fact worthy of renuvrk that of the county judges of Ontario who
have replied to the circular of the Minister of Justice, twenty-two are in favor
of abolition an<l only eigiit against it, while of the five who are classed as
doubtful. Judges Price, Kingsmill and liarrett are clearly in favor of the
abrogation of the system, provided a satisfactory substitute could be found.
As to .Judge Woods, of Chatham, I do not see why his name is put in the
doubtful column, because he is decidedly in favor ot abolition. So that
practically there are twenty-six for and only eight against abolition, with one
really doubtful.
IVie Canada Lair Journal of .January, 1892, in ,iu editorial on this subject
says: "County judges, by reason of their local knowledge, are specially
fitted to speak upon this matter, and they are well aware of this blot on the
administration of justice, anil it is a significant fact that they stand twenty-
two to nine in favor of abolition, notwithstanding the bald way in which the
question was put to them. Add to this majority Judge Wood, who favors
aiiolition as regards the sessions and apologetically pleads for a compromise,
and the minority is a very small one. The point is tliis, the county court
judges are thrown into very close contact with the workings of all institutions
in their districts. They mix more fieciiiently with the people than <lo the
superior court judges, and in conseciuence they have a fuller knowletlge of
matters like the workings of the (i rand .Juries, and are more in touch with
the way the ordinary man transacts his affairs than judges whose time is
spent almost wholly in an atmosphere of law. They understand from the very
nature of the lociilized position what iniluences iiave been at work when there
is an evident miscarriage of justice. Most of the county judges have been
practitioners taiid politicians in their respective counties. They know the
factions and local jealousies and fumily differences of half their constituency.
They know the most of the men on the (irand Inquest at each court, and
when some failure of justice, as regards either the innocent or guilty occurs,
they can put their ringer on the weak spot and say from what cause the
innocent was presented for trial or the morally and legally guilty man
allowed to escape. We need not give names, but our readers will at once
44
recognize the fact that tliere are a numl>er of the county judges wlio have had
very wide experience and have given the matter special attention, and it is
not saying anything disrespectful to llie superior court hesncli, that the opinion
of such men must, from their surroundings, personal ohsei'vatiou an<l local
knowledge, be the very best evidence we can get on tiie subject."
A writer in the Vancouver World, referring to this matter, remarks •
" Tiie county judges of Ontario are unanimous in the opinion that the (Jrand
Inq\iest siiouhl be al)olished. This is a remarkable factor. The county judge
there has an extensive prerogative and jurisdiction and presides over the
general sessions. He is ciiosen for iiis ortice c'ls being a pul)lic man of tlie
particular county, and knows familiarly and intimately, to a man, the (Jrand
Jurors. The county judiciary, from their actual knowledge and experience,
possess an even truer and more (ixact opinion on this subject than the superior
court bench, the judges of which are centered in Toronto."
A certain learned and witty Ontario Chief Justice who, fortunately, still
lives to grace his high position, often gets off a " ^^ood thing." These are,
unfortunately, often lost in oblivion or linger oidy in the memory of those
who hap})en to have heard them, 'J'here is one wiiich may come in
appropriately here : Speaking of the Act enal)ling county court judges to
officiate in other counties than their own, he observed : "Itis very hard on the
people of a county to have a judge coming among them whose law they are
not accustomed to." As the learned judge will have no objection to a good-
natured rejoinder, I, as my contribution, beg leave to offer the following :
Loril Brougham once said in the House of Lords, that he remembered a case
wherein Lf)rd Ciiancellor Kldon referred it in succession to three chief courts
below to decide wliat a certain document was. The Court of King's IJench
decided it was a lease in fee ; the Connnon Pleas, that it was a lease in tail ;
the Exche(iuer tiiat it was a lease for years. Whei'eupon Lord Kldon when it,
came back to him decided for him.self that it was no h'a-se fit all. Which goes
to shew that even in tiie highest courts of the land, until at least the millenium
shall have arrived, perfect unanimity may not be looked for, and that,
occasionally, " tiie people of a county" may expect even from learned chief
justices, an intcrjiretation of the law different •^rom what other learned
chief justices may have accustomed them to.
Some of the judges argue tiiat in the event of the abrogation of the (jrand
Jury a special prosecutor would have to be appointed at great expense, for
each county to disaharge tiie functions now performed by the (irand Incjuest.
Those who advocate the ajipointnient of sucli an official say to this that it is
not proposed to appnint an officer of the character indicated, for each county,
any more than it is the fashion to appoint one superior court judge or crown
counsel for each county. These judges and counsel, witli great advantage to
the public, go on circuit twice a year, and so could the public prosecutor, and
thus a great saving of expense would Ije effected to the country.
On the whole I think it will be found that the great majority, of those who
are in favor of a substitute f.r the (Jrand Jury, and many who would be
favorable to a change if a substitute satisfactory to thein could be found,
appear to be of opinion that the appointment should not lie given to the
county attorneys (who would, of course, still retain their present positions
with some changes in matters of procedure necessitated by the altered state
of tilings), but tliat a pulilic prosecutor chosen from the bar, should be
appointed by the crown, who should travel on circuit similarly to ihe judges
of assize.
As Senator ({owaii says ; " How and under what tenure crown prosecutors
should be appointed, the limits of tlieir duties and other matters of necessary
detail, it would now be premature to eiitei- upon as it is outside my purpose
to discuss the appointments retiuiied, and whether made by the general
4.1
govei'iiiiiciit ( r otlieruisu arraiigud, tliosu ('(iiiMiduratioiis l>cl<)ngiiig U> ii
iniiturt'd ineasiire."
'I'lii! omiiuiiit Hdliolar Mr. (Joldwiii Smith writing on tluH subject, is thus
r»!|)()rtc!d : " A piddii; prosouiitor would he guarded liy his professional instincts'
against irrelevant considerations, and though he would, in the first instance,
owe his appointment to the (iovernment, it is dithcult to imagine any circuni
stances in which his care for his own re[)utation and his interest in his olHce
would he likely to give way to his dtisire to olilige u niinistei". To tin
iiixti/iitioii of' ft piililic pi'owcntor we in time xliall prohiihly come."
Coming from a layman, as this does, it is very valuahlo as an initiative to
a body that should now have something to say in a matter which so intimately
concerns them.
In case the (irand .lury siiould lie abolished and the county attorney he
consideied an improper sul)stitute for that hody, then one argument employed
hy nuiny of the judges will lose its force, as it is very sti'wugly urged by them
that this otiicer, if paid by fees to perform the udditional duties, would have a
sli'ong |)ersonal inducement to forment and institute ci'iminal prosecutions.
The same argument would, of course, apj)ly weie a indilic prosecutor, paid in
the same manner, app;)inted. This objection would, however, be overcome if
the latter official was i)aid an adecjuatu salary.
As it woulil be necessai'y that he shoidd be a barrister of some years
standing, and one not practising in criminal courts, and as it woulil, con-
se((uently, be too expensive to have one of these f)tHcers for each county, they
(iould l)e a[)i)ointed foi' a group of counties ; in this way a salary sufficient, as
siiewn elsewhere, to induce talented and high-minded men to accej)t the posi-
tion would be available, with the result that the public would have as much
confidence in these ofiicials as they now justly have in the judiciary of the
laml, a;.'ainst whom no one ever iiears a word of well-grounded complaint,
although they have vei\y extensive and sometimes use vei'y ai-bitraiy powers.
It would be as unlikely that the ])ulilic would fear an injudicious or inifuoper
exercise of the powers vested in and employed by competent public j)rosecutors
as it would be for them to object to the manner in which the judges now
exercise those with which they are clothed.
Again, while it would be possible for the public prosecutor to lean unduly
to the side of mercy and ignore a bill, on the other haiul any harshness he
might exercise in unwarrantably finding a true bill could be corrected by the
I)etit jury acquitting the accused.
The attitude of that learned judge who declined to commit himself on the
subject of the abolition of the (irand dui'y wlien re([uested to give his opinion
l)y the Minister of .Justice reminds one of a certain distinguisheil nobleman in
tiie " lngolds))y Legends" who, on being asked by the Jving of .Spain for
advice on a certain matter, cautiously replied :
" It's the — .IS 1 may say — proudest day iif niy life !
I'ut as to the point — on a subject so nice
It's a delicate m.Uter to give one's advice,
Kspecially, too, when we don't clearly viea
The best mode of proceeding, or know what to do ;
My deciiled opuiion, however, is lhi>,
And I fearlessly say that you can't do amiss,
If with all that tine tact, hoth to think and to act.
In which all know your majesty so much excels -
You are graciously pleased to- ask sotneljody else !"
While the brevity of the renuirks with which some of the other judges
dismiss the subject recalls what w s said on the same occasion to the king by
another distinguished noblenmn, a companion of the last-named individual,
viz. :
"Then the Count de Pacheco
Whose turn 'twas to speak, () —
-Mitting all prelace, e.xclaimed with devotion,
'Sire, I beg leave to second Don Lewis's motion ! "
EXTRACTS FROM THE OPINIONS OF THE JUDGES AS TO
WHAT SHOULD BE SUBSTITUTED FOR
THE GRAND JURY.
A great miml)ui' of tlioHo wlio advocate tlie abolition of tiie ( J rami . I my,
and many of those vvlio opj)()3e its al)()lition. are of opinion tliat before being
ab()li»lie(l, there siiould lie some eonipetent tril)unal Hiii)Htitiited for it.
Sir .loiin 'l"homi)son, wiien tiie ipieHtion came i)efore the House of
Commons in April, 1H!('2, is reported in I/ansanl to have thus remarked:
" Another ronsideration which has had great weight with the judges who
desire that tlu; change should not l)e nuide at pi-esent, is the uncertainty as to
what procedure would take the place of that before the (Jiand -Jury. I can
suggest no other as likely to take its place, except aometiiing like this : It is
the reijuirement that every person, before being tried, should be committed
for tiial after a preliminar} investigation or an examination bj' soniecom])etent
authoi'it)'. 'I'here are many ottences, as most niend)ers are awaie, for which
trial can take place now without any connnitment for trial preceding the
charge to the (Jiand Jury and the a])plication to the (Jrand .Jury and the
inilictment by the (!rand -hiry. It will be absolutely necessary that we
shoii'd insist upon a ])rovision, if we should abolish the fmictions of the (irand
.lury, that every person tried must first be connnitted for ti'ial, and in tne
second place that the complaint, indictment, chai'ge, or whatever it might be,
which would take the place. of a (Jrand .Jury's indictments, should be approved
by the judge before whom the trial is to come on."
Mr. .Justice (Jwynne says : "The justices of the peace can always have
the assistance of the county ci'own attorney to advise them in the discharge
of theii- duties, an<l the courts, under sections 81 .and H'2 of the Criminal
Procedure Act, can always be invoked to intervene in the intciest of the
person charged with crime when the evidence taken before the justices woidd
seem to justify the accused l)eing admitted to bail instead of being confined in
jail to wait their trial. Hut whether the existing law regulating the discharge
of their duties by justices of the peace out of sessions be or be not sutHcient to
warrant the imnridiatc and total abolition of the Civind .Jury system is of
no importance, for it can be made sufficient in every particular wherein it may
be deemed to be insufficient. ""
Mr. .Justice Taschereau says on this ])oint : " I do not lose sight of the
principal argument brought by those who would continue the present system,
that is : \Vhat will l)e substituted for the (Jrand .Jury ''. To whom will the
functions they now perform be delegated '! The answers to these (juestions
naturally give room to a great divergence of opinion." His Lordship then
submits, as the principal features of a new system, six general pro[)ositions,
which will be found later on in this review. They will be found of great
value when the pro[)er time arrives.
Chief Justice Hagarty, who is in favor of retaining the (irand Jury, says :
" If the (Jrand .Jury be abolished what is to stand in its place between the
person charged before justices and trial at assizes or sessions ? I deprecate in
the strongest manner the leaving the discretion of arraigning or discharging
tht! ])erson chaigcd to an official like the piesent county attorney— almost
always a practising lawyer whose pecuniary interest it is always to proceed to
trial and with whom {)ractically (as I have heard remarked) the whole county
is divided between those who are his clients and those who are not.
If a lawyer of good standing could be appointed to duties
somewhat analagous to tlie .Scottish procurator fiscal, it would, I think, be
47
esHeiitial in Ontario— wliatever it may bo in Scotland— tiwit he nhould have
no otlier coiitontionH U-^iil luiHint'fis to enij)loy liini in any county or tMinntii'.s
for wiiifli \w would ln' iippointcd. No lawyt'i' po.ssiliiy coidd alloitl to hold
Mucli an olli('<! witliout a iaigor Miliary t'lan any liki'ly to lie allowi'd for facli
county. l*osMil)ly count icH could l»c grouped together under one »iich ( tlicer.
Such changes would |)OM8il)ly ie<|inrc the cooperation of the provincial
goveirirnentH. '"
Chief Justice (Jalt, who is also in favor of retaining the present systenr,
says : " Tirere orrght in fairriens to the accused and irr the interist of puiilic
justice to lie some trihirnal other' tharr that of a jirstice of the peace' hefore a
iruiir is j)ut upon his trial." • • . . •. Wjti, ^u icspect for'
county attor'neys, they are rrot, irr my opirriorr, persons who siiould decide oir
criririrriil pr'occicdirrgs. They ar'e the per'sorrs who condm't pr'osc(nrt iorrs at the
(lerrer'al Sessiorrs arrd, as cler'ks of the [reace, ar'e hr'ought dear'ly irr I'ontact
with the justices of tire peace."
Mr'. .Justice Falconhridge, irr advancirrg urgurnerrls agairrst aliolition,
s|)eaks also of the rrecessity for' the irrterpositioir of some triliurral hetween tire
conrrriittiirg rriagistr'ate and the pr'isorrer'"s dock, arrd then pi'oceeds : " It is
rrecessary to hear' in rrrirrd that it will lit a loirgtime licfor't! the Dorrrinion cair
disperrso with the ser'vices of arr unsalar'ied rripgistr'acy corrrposed of rrreir who
have irot followed the law as a pr'ofcssiorr, everr if it would ever' be desir'a'ih)
(which I very rrruch douht) to r'eplace them by a system of ])aid or- stipendiary
rrragistr'ates who have been regularly trained to the [)ractice and pr'inciplcs of
cr'irrrirral law. This beirrg the case, what .system can be devised to replace the
jrresent functiorrs of a (irarrd .lirry ? Cer'tainly rrot the a|)poirrtment of ai y
sirrglc otHuer such as a pr'ocurator fiscal, for many r'easorrs."
Mr-. Justice MacMahoir, who is also opposed to abolition, is of opiniorr
that " whei'e there is not a tr'aincd magistracy, that is, a rrragistr'acy who by
means of a legal education have becoirrecorrversarrt with the rules of evidcrrce,
there should, I consider, be arrother tribunal to which committals should be
subjected befor-e the accused is put upoir his trial, 'i'liis is in many instances
the oirly safeguar'd the accuseil has fr'orrr beirrg sui)jccted to the igrrominy
resulting from beirrg placed upon trial ; aird this apirlies with particular'
cogency where the prosecution is instigated by nralevolerrceand errdeavored to
be supported by per-jury ~ a class of cases now rrot urrcommon irr the courts."
" If officers were to be appoirrted e.xercisirrg the like
functions and clothed with authority similar to that ])osscsscd by the
pr'ocurators fiscal in Scotland, there woirld be rrruch gr'catei' difficulty on
accourrt of the wider area to be tr'aversed over irr the larger' coirrrties in Carrada
in perfornring the duties of such arr office tharr irr the srrrall courrties in Scot-
land. And if such an officer were to be paid by fees, itinight often be urged
that it was his cupiditj' and not the ])ublic irrter-est which was actuating hinr
in many instances in conductirrg pro.secutions ; and, if paid by salary, that his
duties wei'e beirrg perforrrred irr a pr'efunctory manner-, that the irrtercsts of
the public wer-e being neglected ami erirrrinals allowed to go irn whipped of
justice."
Mr. Justice Ferguson considers it would be inexpedient to aliolish the
existirrg (irand .fury systerrr unless something better should be jrlaced irr its
8tea<l, and that ther'e should be, iir justice to an accused person, sonre tribrrnal
that does not, apart from the (irarrd .lury, irow exist in Ontario, betweerr the
committing magistrate and the j)lacing of such accused per-son irr the usual
way upoir his trial. His Lordship does not, however-, suggest what such
tribunal should be.
Mr, Justice Street is of opinion it would be difficult to devise a tribunal
which would replace the (Jranil Jury, arid, like Mr'. .Justice Ferguson, does not
suggest one.
48
Mr. .TiiMtico IloHo foiini(lerH tliiil up to tl)«t preHfiil tiiiu! iiotliiiij^ \>y way (»f
iiiipi'oveiiieiit on tin* (it'iiiid •liity HyMtoiii Iuih Ik!i-ii HUggeHtoil. Ho Im not
favorably iiiipruHHcd with Miu Htij^geHtion of leaving to one pciHon I liu c|iie8tion
of whether an accUHeil person is to lie put on hi.s trial.
Ml'. .luHtice liurton conHiders tlie ])nlilic HJionhl Iks infornied of the nature
of the triliunal intended to take the place of the (Jiand dnry. He does not
know iiow tlie appointment of an otlieei' like the procurator tiHcal Iuih been
found to work in Scotland. He then proceeds to say : " liut it would,
under any circumstances, he impossihle in praclict^ to entrust the snper\ision
of all crindnal investigations at present perform<.-d i)y (I rand .luries to one
Huch otiiciai, and the persons tilling the otiice iihould lie men of high attain-
nier.ts, to whom large salaries should, to secure etiiciency, he paid. There are
obvious reasons, which will suggest themselves to every one accu"*' 'ned to
the administration of criminal justice why so large a discretion sh> )t be
entrusted to the county attorneys. I am of opinion, therefoie, th .o first
consideration is : What is priij)osed to be sidistituted for the (Iraini .lury f
And then does that tril)unal, or is it likely to, command the conlidencc of the
public '! "
.ludgc Lazier says that so far at least as the general sessions are concerned
the duties now performed by the (irand Jury nnght be left to the police ami
other magistrates antl the county attorneys or some other ])ublic prosecutor.
.ludge Price thinks that, " if some satisfactory otiiciai board could be
nanietl, before whom the com]>laint and e\idence could be laid, ami no indict-
ment ])roceede(l upon except such as that board should advise, (Jiand .Juiies
nnght be dispensed with and money be saved. If a satisfactory oHicial or
board can be appointed the expense would be overcome and cijually
satisfactory residts arrived at.'"
.ludgc Deacon suggests that : " If the 140th section of Cap. 174 of R.
S. ('. (the old Crinuinil Procedure Act) were nuide to cover all cases, and a
competent public ])rosecutoi' appointed to take charge of all prosecutions,
then there would l)e a tangible responsibility, ami every step tak ' o])enly
ami above board, the result being a inoi'e ethcient ai'd less expensi- nn'nis-
tration of justice, with every satisfaction to the jiublic, who woul ble to
see for themselves every step in the ciiminal i)roce<lure. I am a,. ■>{ the
diversity of opinion among the jntlges in regard to the contiimance oi- other-
wise of the (Jrand dury system, but, apart from thein, I do not think the
public at large are gieatly exercised, one way or the other, about the present
sj'stem, and would readily fall in with and approve of the change when its
beneticial operation was made to appear."
Judge .Jones, in objecting to the abolition f)f the system, also objects to
the duties oi the Grand .lury being relegated to the county attorney, an
ofticer who is wholly [)aid by fees, an<l says there should be no such personal
inducement for him to institute criminal prosecutions He thinks tiiat in
cases preferred by private prosecutors there is the same necessity that some
competent disinterested tribunal oi' authority shonld pass upon the charge
before the accused is subjected to the hardship and disgrace of lieing put in
the dock. His Honor also considers that any public otHcer who is substit\ited
for the (irand .'ury should be paid by salary, and not by fees, so that he
would be (juite independent in his action in such matters.
.Judge Ardagh says : " The abolition of the Graiul ./ury would, of
course, be dependent npon the institution of some other body or some other
official duly appointed for the purpose." • • ' ' "A public
criminal prosecutor who had no private interests to serve — whose position and
responsibility would be powerful inducements to a strict and conscientious
performance of his duties, and whose conduct would subsequently be liable to
comment from the coni-t is the liest substitute for the (Jrand .1 ury that at
j)resent occurs to me. "
41>
•lutlgo Miu!«l(tiial«l Kiiyn : " I •!«) not belit^vo there would pnietically Ito
any iiijuHtico (lone to H imiHoii duirficd witli an nircncc, if In; should at the
Hitting of (he court, ho placed upiiii iii.s liial hcforc llic ordinary jury without
the intervontioM of a (Irand .lury. In the great nmjority of caMeH — pt'rhaj)M
nine out of ten there Iiuh airi^idy i)cen an investigation before a nuigiHtrate,
wiiich has enaliled the defemlant to know the charge made agaiuHt him. And
in the eawe of tin; aliolition of the (Iiand .luiy I pre«ume in no cane wouhl a
man he placed upon trial luifdn; a petit jury v\ithr)ut such previous
investigation being had."
•ludge Hoys HUggests retaining the name of (irand .Tury, but would
reduce their nund)er to three for each county or district to be selected fron\
the best avaiial>le pul)lic olhcials. His Honor then at consiileralile length
discusses the powers and duties of this (Jrand Jury, an<l concludes with a list
of seven advantages of hia system, which is worthy of perusual.
Judge Up|)er is of opinion that if the ])resent system be abolished some
plan shfjuld l)e devised so that a |)erson impr'oi)eily committed for trial wouhl
luive his case reviewed by some authority competent to say whether the
accused shouhl be tiied or not. As far as his expeiicnce goes, about nine
pei'sons out of ten elect to be tried in the county judge s criminal court,
where there is neither gian<l nor petit juiy in cases where that court has
jurisdiction, and that if Oiand Juries weie abolished, not only would theie be
a great saving of e\|)ense in criminal administiation, but the rights and
liberties of those whom (Jrand Juries are supjiosed to l)rotect would be as
ert'ectively protected l»y whatever auth;)rity may be substituted to supply the
place and functions of (irand Juries in relation to crinnnal matters.
Judge Uenson, while objecting to abolition, is of opinion " that some
investigating otlicial or body luuat be interposed between the oi'dinary justice
of the i)eace and court of trial, and it has been suggested that the county
attiirney system of Ontario might i)e used foi- that purpose in this ])rovince,
and a similar othcer be delegated to discharge the duties elsewhere where such
an otficial does not exist. In my lunnblo opinion such imp<jrtant and far-
reaching functions should not be dischaiged by any person who is allowed at
the same lime to pract ice his profession. The public prosecutor who is to ))«
substituted for the (ir. 1 Jury slioidd be removed frfim all tem])tation, as
well as o])pf)rtunity, to 'ke use of the criminal law for the attainment of
supposed civil rights or redress i.t' sn|)posed civil wrongs. He shoidd be
absolutely independent in h.s otiice, and hold a (|uasi-judicial position. This
can only be accomplished by his holding ollice during good behavior and being
paid by salary."
Judge Fralick expresses the opinion that the best sul)stitute for a (irand
Jury would be a grantl inquest composed of seven justices of the peace for the
county, wluv shouhl have the same powers as those now possessed by the
(iranil Jury, and that this would be a great saving of expense. His Honor
then describes the mode of di-aftiiig the grand imiuest.
.Judge Ermatinger is of opinicm that some provision should be made for
the investigation of cases otlurwise than by the ordinary justices of the
peace in those parts of each county having no stipendiary police magistrate.
He would not favor the investigation of cases by an otticer, whether magis-
trate, crown attorney or procurator fiscal, who was paid by fees. "In case
the (irand Jury be abolished and no other safeguard than the present
magistracy provided, 1 would suggest that no committal for trial be allowed
unless by a bench of at least three magistrates, of whom two should concur
to commit. 1 would not, however, reconnnend the abolition of the (irand
Jury with this safeguard only— it might even be difficult to obtain three
magistrates in every case, unless they are paid to attend.'" His Honor makes
other suggestions which sjjace prevents my nolic'ng.
50
Judge Hughes is in favor of the appointuiont of an officer wliose duties
wouhl coi'reiJpf)nd witli thf)«e of the pi'ocurator fiscal in Scotland. His
reasons for tluM will he found stated at length un.der the title "A Puhlio
Prosecutoi'. "
.ludge McCr.ie tliinks that with an intelligent magistracy (which ought
to he on a par with (<rand Jurors) and our system of county attoi'ueya to take
the responsihility of j)referring indictments no fear shoidd exist of a person
heing put on trial without cause.
Judge ]{()1)1) says that against the advantages to l)e derived from the
aholition of the (J rand .Jury he knows of no evils that could not be guarded
against by proper legislation.
.Iiidges Kingsuiill and Barrett say jointly that tlie substitution for a
(Jrand Jury of any other person or persons sucn as crown counsel, county
judge, sheriff", etc , or two or more of them would not meet with their
approval l)ecause the prisoner would not he represented. They think that
any one sent for trial should, in the event of the abrf)gation of the (irand
Jury, be given the right to apply to a judge on notice to the crown to be
discharged on the ground that the depositions were not sutKcient lo put him
on his trial, which would be just as eHicient a check on the justices of tiie
peace as a (irand Jury, and would be cheap and sinijile. To meet the i-ight
which a (Jrand Jury has of calling fresh evidence the j"dge should have the
power to send the case back to the justice for further evidence at the reriuest
of the crown if necessary.
Judge Wood considers that any body or tribunal substituted for the
(Iraud Jury shoiUd l)e one commanding public confidence and one which
would see that the law was not used as an instrument of oppression and
persecution. His Honor assumes that in many cases the crown prosecutor
would recpiire the_//a< of some tribunal or judicial officer before presenting an
indictment for trial l)efore a jury.
Judge Woods advocates the appointment of police magistrates and
atrengtiiening the hands of the crown attorney and giving him supervision of
every case coming before the magistrates. He says there should be as few
persons connected with a prosecution as possible, and that local partialities,
prejudices or influences should be controlled by an outside supervision.
Justices McCarthy and Melvenzie wouhl appear to consider that the
magistracy would be a sufficient substitute.
QUEBEC
Chief Justice Johnson would be satisfied in case of the aholition of the
system if the police magistrate in cities were substituted, but beyond the
cities such substitution would not he desirable, if not wliolly impracticable as
the power of the federal parliament to regulate criminal procedure could not
extend to the appointment of local magistrates, and those offices would
therefore be held bj' partisaTis to the great danger and detriment of justice as
well in public opinion as in its actual adnnnistration, which is already
beset with great difficulty and expense arising frotr, the two languages in use
in the province.
Mr. Justice Pelletier admits the keeping up of the (Jrand Jury to be
costly, and would not object if another mode of trial offering similar
guarantees were substituted for it.
Mr Justice Wurtele says that if there were able judges of the sessions and
district magistrates, and the law re(juired all cases to be referred to them for
committal for trial, that in his opinion would be sufficient.
Mr. Justice Pagnuelo is opposed both to justices of the peace and officials
appointed by local governments being substituted for the (Jrand .lury. If the
system adopted in France in 1808 as a substitute for the (;lrand Jury, and
.11
vvliicli ia now very generally lulopted all through Europe, were possible here,
he would favor its adoption with nioditication of details. His Lordship then
shortly explains wliat this system is.
Mr, Justice lirooks does not favor justices of the peace as substitutes for
the (irand .lury on account of their generally deficient education and their
lack of knowledge of law, nor does he favor the system prevailing in France.
.Judge Tessier thinks any new system would be exposed to suspicion and
unfriendly criticism.
.Judge Taschereau considers all difficulties would be overcome 1)y a proper
system of preliminary examination under the responsil)ility and supervision
of officials ad hoc
•Judge Mathieu thinks that the preliminary examination before a justice
of the peace or ])olice magistrate, an<l in default of such the authorization of
the court would be a sufficient ])roteotion for an accused person who, with
these provisions, could not be sul)ject to vexatious trials at law.
Mr. .Justice Cross considers that if presentation were nuide at the
instance of a public officer only, his responsibility would he great. If
possessed of this power he would become arijitrary.
Mr. .Justice (! ill considers there Wf)uld have to be some mollifications of
the ))reliuiinary examination before justices of the peace, as those in rural
districts are not sufficiently educated.
Mr. Justice Charland is in favor of all preliminary investigations lieing
made by competent magistrates.
Mr. Justice liourgeois thinks that in tin,' lural districts pieliminary
in(juiries are often made by unskilled or prejudiced justices. If the (Jrand
Jury shouhl be abolished he tliinks nobody should be arraigned uidess a
preliminary investigation had been made by a competent officer.
Mr. Justice Loranger considers that a prf)per system of prelimiuarj-
investigation, coupled with the appointment of permanent crown prosecutors,
would answer every purpose.
Mr. .Justice Lynch knows of nothing whicli would replace it, but admits
that the manner of composing it might be improved so that its membership
would be made up of the nu)re intelligent pait of the community.
NOVA SCOTIA.
Mr. .Justice Ritchie thinks the prosecuting officer might, in criminal cases,
1)6 re([uired to subnnt the depositions to a judge and obtain his authority to
file an indictment or written charge and proceed to trial.
Mr. Justice Townshend, in assuming that if abolished, a somewhat
similar mode might be adopted to that under the Speedy Trials Act, considers
that it would be open to some grave objections which he points out, and which
appear to be more as to form than to niattei- of substance. If the duties of
tiie (irand .Jury are to l)e left in the hands of tlie prosecuting counsel in each
county, or tlie attorney-general of eacli |)rovince, it would be objectionable
and (bmgerous on the ground that the former are not in many cases competent
men and are genei'ally appointed as a reward for political services without
reference to fitness. They have a direct interest in instigating ami pushing
on prosecutions for the sake of fees, which power is used for oppressive
pur[)oses and to shield friends from prosecution who have been guilty of
breaches of the criminal law.
.Judge .Johnston considers that tlie interests of ^ party charged would be
sutti iently guarded were he to be tried on the commitment of the committing
magistrate, There might be a limitation or exception in the case of political
offences where a (irand .Jury might be called upon.
.Judge Desbi'isay thinks that all ])rocee(lings up to and including
prijsecutions should be taken by an olficer appointed for each county or given
32
district, who slioiihl 1)0 a man of re8j)oiisil)ility, kiKJwledgu and iinown
integrity —whose time sliould be devoted to the duties devohing upon ium,
and who should l)e paid a suitahle salary.
NEW BRUNSWICK.
Hon. Ml'. Justice King considers it would l)e ohjectionahle to put persons
upon trial on criminal cluirgcs upon the oj)inion of a connnitting nuigistrate
unless adequate provision for liherty were made.
PRINCE EDWARD ISLAND.
Mr. Justice Petei's asks : "Suppose the (hand Jury to he aholislied,
what kind of proemial body arc you to substitute for it '! Is every one to l>e
at liberty to Hie an information in the supreme court charging any crime he
pleases against an individual in the same manner as he would tile a declaration
for debt ? If so, the ])rothonotary's otHce will be the receptacle of many false
and scandalous charges, which, if ])reviously investigated by a (mand Jury,
would never have seen the light. If not, what advantage is to be gained liy
substituting a new body to perform the .same duties that were performed by
the one abolished? "
Mr. Justice Hensley is of f)piiuon it would be hard to find an efficient
substitute for the (J rand Jui'y, and thinks it would be dangerous to
attempt it.
Judge Kelly thinks the functif)ns of the(Jrand Jury might conscientiously
be transferred to district and county court justices before whom indictments
and presentments could be submitted, and at briefer intervals of tunc than
the present procedure permits, and thus when one is falsely accused a speedy
removal of the accusation would he accomplislied.
MANITOBA.
Judge Bain says : "It may happen that justices may make connnitments
on evidence that will not warrant them in so doing ; and if (Irand Juries are
to l)e done away with it would be necessary that a means should be ])rovided
by which persons so cf)mmitted could be discharged without having to wait
for and without having to prepare for a trial. Such a discharge should be by
a judicial act, and I would not like to see any single official entrusted with
tlie power of deciding privately, and on his own responsibility, whether one
who had been committed for tiial should l)e tried or not Provision Avould
iilso have to be nuide for preparing indictments in proper cases against
persons who had not been committed for trial."
BRITISH COLUMBIA.
Mr. Justice McCreight says : "If there is no (irand Jury the duties
which they now discharge will, I suppose, be performed by a provincial
officer. I cannot say that the change, although it would probably work well
in the great majority of cases, might not on some occasions raise doubts as to
its policy.
Judge Bole is of opinion that the change i)rop:)sed is open to the grave
objection that the powers of (irand Juries would bo transferred to otlicials,
and might in some cases lead to serious complications.
A PUBLIC PROSECUTOR.
to
Chief Justice Hagarty, as will i)e noticed, has said that " to dispense with
the Grand Jury is quite inipossil)le until some careful substitute is found."
Many thoughtful judges and others consider that such substitute could
with great ad\'anta;4e be ol)tained by copying from the efKcient system of
pul)liu prosecutors in vogue in Scotland. It is not a new system. It has been
long tried and thoroughly tested, and if the wisdom of a scheme is to be
measured by its successful working, then, as Senator (iowan says, " that of
the Scotch public prosecutor or procurator fiscal should certainly commend
itself for imitation and adoption."
The pulilic prosecutors would perform the functions now performed by
the (irand Jury. Tliey would have a ' .M'tain teriure of office and the same
independence of local and govermr ,iit influence which the law accords to
judges and police magistrates. Being, as they should be, members of the
legal piofession, they wouhl be al)le to appreciate the Vidue of evidence,
bring out the facts from the witnesses and shoulder a responsibility which it
is now impossible to fix upon any one juror. They would be under the
direction of the chief law officer of the crown, and tluis without any serious
disturbance in the machinery of the courts, criminal prosecutions would be
placed on much the same footing as under the Scotch system, for which it is
claimed tiiat the investigation of ci'iminal offences luid tlie ])ioceedings
preparatoi-y to criminal prosecutions are beyond the control of ixijiular
influence in the local sense, while subject to strict official su])eivision, to the
control of public opinion in accordance with the constitution and to the
criticisms of tiie public press.
I think I cannot do better than quote here the opinion of His Honor
Judge Hughes, the senior judge of the County of l-'.lgin, who, liaving had
thirty-nine years' very active judicial experience, is competent to speak with
considerable authority on this point. His Honor says : "A pieliminary
investigation into crime within each county might ))e substituted, either
before a stipendiary or police magistrate or before a salaried official, some-
what after the plan in existence for many years satisfactorily, and the
functions given to a public proset^utor, in Scotland, called the procuratoi'
fiscal. 1 think that such an ofKcer might not only take the place of the(iran4l
Jury, but he the means of a great saving of useless expense, by sending cases
to a proper tribunal for trial, and so, in a measure, prevent a greit many
trifling cases occupying the valuable time of assize and courts of oyer and
terminer or other ci'iminal courts f)f record, which too often delay the trial of
important cases, and whicii might more profitably, to tiie public, be employjed
in trying important civil suits or crimiiuil cases of greatei' moment.
"The county crown attorney is authorized by law to perfect and
complete depositions, and to institute proceedings as public prosecutor in
cases wherein the public interests recpiire the exercise of his otficc, and, where
necessary, to cause charges to be further investigated and additional evidence
to be collected, whenever, upon examination, depositions connected with
criminal charges do not appear to he sufficient or com])lete, and to have
further evidence taken where necessary. Owing to the parsimony of the
gove'ument, tl<is duty is seldom performed, simply because the govermnent
allows no rennuieration for such services, no matter how necessary tiiey nniy
be, and criminal prosecutions fall to the ground in consequence. In coimection
with this subject, that duty should l)e performed assiduously, and with care,
with a view to submitting the whole case as it ought to be j)resented to an
54
otticer who for conveniencL' I will call a procuiator tihcul. In the ahsunce of
a stipendiary or police magistrate in each county, there shouli' ))e an officer
appointed hy the crown, eithei' a retired barrister or one of at least five years'
standing and actual practice at the har of his own ])rovince, chosen for his
worth and standing in his profession, to act in the capacity of and to he
named as al)ove, whose otiice it should be to pei'form the present functions of
a (J land -lury and en(|uire into ciime within the district of his a])])ointnicnt.
He should hold his oflice indej)cndent of the crown, during good behavior, and
be paid by fixed salary. He should not be a resident of any county of the
di>trict for which he is ap])ointed, or of any county adjoining thereto, nor
should he be a natii'e of the district. He should, before the sitting of the
court of assize oi- other criminal court, take a circuit of his di ict for the
])nrpf)se of e.Kaniining depositions and examination of witnesses t n before a
justice of the jjeace, and make necessary enquiries into the crinus alleged to
have been oonnnitted within his district. To him sheuUd be submitted all the
depositions of witnesses in the hands of or filed with the county crown
attorney in every crimin.il case. No such case should be instituted, except
by priliminary complaint and examination and investigation had upon oath,
either before a police or stipeudiai-y nuigistrate (to be appointed in every
county) in lieu of the present absurd and too numerous magistracy, oi' upon
the |)resentment of the procurator fiscal. In cases where the.'e is no ])olice or
stipen.liiiry magistrate in the county and only upon his accusation or indict-
ment, should a ci'iminal case be proceeded with, i. c, after it had Ijeen
reduced to form and signed by him, and submitted to the counsel acting for
the ))ro3ecuti()n thereof, on behalf of the crown. This j)rovision should not
a])|)ly to any case to l)e jjresented by criminal information before the high
court of justice, or summarily, or coming within the provisions of the Speedy
Trials Act, or the Summary Trials Act, or the Juvenile Offenders Act.
" The procurator fiscal should hohl his ofJice by conmiission from the
governnient, upon the I'ecoihUieudation of judges of the high court of justice,
a!ul be removable l)y tile government oidy. He should hold his office during
good b','havior, removal)le only for inability, incapacity or misbehavior
established to the satisfaction of the high court or any two of the judges.
" In casci any relative or person next of kin or connected by marriage or
otherwise with the procurator iiscal should l)e accused of crime in any county
within his district, some other <u)ni]M'tent barrister-at-law should be appointed
(/(/ hoc to act ill his stead. He should be capable and comi)etent of acting in
a district consisting of one or more counties ; and for the proper and efHjient
discharge of his duties he should make periodical circuits of the district for
which he is appointed as occasion ndght recjuire.
" After the procurator fiscal has jir())ared and signed his accusations or
indictments, he should hand or transmit thom to the county crown attorney
of the county in which the caves are to be tried or to the counsel employed by
the crown to ])rosecute them together with all wi'itten depositions taken,
either by the stipendiai'y or police nuigistrate or before himself, and in ail
cases whei'c it is his opinion tiiat j)ersons should have been accused of crime
or should be discharged from custody, or from their recognizance to a])pear,
lie should certify the same to the county attoi-ney of the pi'oper county, who
should ordei' a discharge, unless there should be an accusation for some other
olVence against the person accused, or uidess the county crown attoi'uey nuiy
detei'Uiine to submit for the consideration and action T)f the procurator fiscal
some additional or U(nvlyac(nured evidence pei'tinentti such accusation.
" Notwithstanding any presentment of the case for tiial iiy the procurator
flTscal if the counsel ac^ting for the crown should think the case ])resented not
sufficiently strong, he should have the discretion to decline to proceed with,
and withhold the prosecution, but if he should think the evidence sufficient
and warrants more than suspicion the pj'oseciition should be proceeded with
to trial befoi'e the proper tribunal."
His Honor then refers to the question of the rehvtive expense of tlie two
systems, and his remarks thereon will he found in another place under the
proper heading.
As the London Free Press, in referring lo the subject about three years
ago, said ; " It is better for the accused as well as for the state, tliat one (or
more) persons trained to the sifting of evidence, should adniinisler aH'airs,
rather than a lot of persons called promiscuously from a population whose
attention is directed to far dillerent matters. Indeed, tlie tendency of the
public mind is in the direction of dispensing with juries altogether— that is,
juries taken from a promiscuous ])ul)lic wliose knowledge of the (juestions that
come before them is necessarily of a limited nature. The principle th;it is
adopted is very much as if one were to set up ignorance, and fall down and
worsiiip it, as the incarnation of wisdom, because it took the form of a jury
and was S(pieezed into a box and sworn upon a worn-out liiblf that had
become greasy with the multitude of adjurations that had been pressed upon
its questionable covers."
Mr. Justice MacMahon, of the Ontario Court of 'Connnon Pleas, has
contributed on the sul)ject of (irand Juries a very valuable paper, in which,
among other tilings, he shews the importance of the system. His Lordshijt is
well (pialified to speak with authority, as well from the numy years"
experience he had before his elevation to the bench, a> a most ciipable and
etHcient crown counsel, as from a number of years' active work in his [)resent
exalted position. He says, " that the care ami vigilance exercised i)y (irand
Juries prevents many accused persons from being [)laced on trial where the
conmitting nuigistrate acts upon evidence of circnmslances wiiich should only
be regar<led as creating a suspicion, thus totally misappreheiuling the cil'cct of
evidence." Further, " that it is the only safeguard an accused person has
from being subjected to the ignominy resulting from being placed upon trial,
and this apj)lies with great forje where the prosecution is instigated l)y
malevolence and endeavored to be suj)poited l)y perjury,"' and thai "dis-
astrous consecjuences to an accu'^ed pei'son, necessarily flowing from wide-
spread publicity, are prevented by the ignoring of a bill by a (Jiand .luiy in
cases of committals i)y nuigistrates where the evidence is too weak and
unsatisfactory to raise a fair presumption of guilt.'"
I shall not attempt to dispute what His Lordsliip says on these points,
but most respectfully submit that the same ends would be as satisfactorily
attained if a substitute, in the form of an elHcient crown piosecutor, were
appointed ; indeed, additional advantages would be gained, in that a trained
oiticial W(ndd be much better able to sift the testinu)ny antl di-covei' the
impi'o])er motives or nuilice which prompted the proceedings, and the |)erjui'y
by which it was sought to be established, than a tribunal utterly unskilled in
the con\monest rudiments of legal science or procedure.
His Lordship urges as an objecticni to the procurator fiscal that if that
official were paid by fees it nughl be said it was ids cupidity and not the
])ublic interest wldch was actuating him in condiu'ting jiublic ])rosecutions,
ami if paid by salary that his duties were being j)erformed in a prefuuctory
nuinner, that the interests of the public were lieing neglected and crinnnals
allowed to go unwhipped of justice. The learned judge voices the opinion of
several others on these ])oints.
As to the first objection I think it is well taken, as the consensus of
f)piinou ap])ears to be that it would not be advisable to pay the ])er.sou who.
should be a|)pointed as a substiiute foi' tiie (irand Jui'y, by fees. On tluM)tliei'
hand, I think there need be no feai' that if the official refeired to were paid
an ade(piate salary he would merit the reproach er j.eavored to be cast upon
him, any n»ore than the judges now deserve any reflection upon their
disinterestedness and ini])artiality.
56
A learned county court judge says that " were the (Jrand .lury abolished
the duties would liave to l)e pertornied by some special official, and experience
shews that those who are public prosecutors are apt to hecomc ptrxrcu tot s, and
reverse the maxim that ' every man is innocent till he is proved yuilty.' They
take the role of the detective and seek only for sucli evidence as will
strengthen their view." In reply to this, I tiiink it may safely be assserted,
that if the proposed official were paid by fees, or had in any way a pecuniary
interest in convicting accused persons, theie might l)e something in the
aigument ; but witlulraw that motive, by having the appointee paid a
sufficient and fixed salary, and tiie point is met at once. Such a government
official, placed above the temptation of pecuniary or other personal interest,
and holding his office during good behavior, as the judges are, would have no
incentive to act in any other tlian a strictly impartial manner, and it would
have the effect of elevating iiim abo e the plane of a policeman or detective,
and make his decisions as much above suspicion as the charges and verdicts of
the judges themselves.
In 7 he Canada Law Journal of January, 1892, it is suggested that a
crown officer should be appointed for each judicial circuit, who should take
the place of the (ilrand -lury. The, Journal considers that such a step would
not only facilitate the abolition of the latter, and at once afford a perfect
substitute for it, but would be a striking reform of another weak branch of
criminal procedure, viz., crown counsel, who, nowadays, only arrive on the
scene of trial at the opening of couit, and are often liuriiedly thrust into a
case without any preparation whatever, and so miscariiage of justice takes
place. Nor, says / he. Journal, does the prest nt mode of appointing a
ilifferent crown counsel for each and every subsequent court insure the
obtaining of good men ? The (juestion of cost is then referred to, and as to
this, and some other important matters, I beg to refer the reader to the
article itself which appears in a subsequent part of tliis review under the
caption, " The Power of the Press."
As bearing somewhat on this (juestion, I quote the following from the
opinion of Mr. Justice Taschereau, of the supreme court, who submits as the
])rincipal features of a new system tiie following general j)ropobitions :
" 1st. In case of a committal by magistrates, to accept it as the finding
of a jury — a fortiori of a connnittal by a coroner, under the verdict of a
coroner's jury ; — of course, when crown prosecutor, if a public prosecution,
lionsents to an indictment.
"•2nd. If a private prosecution, whether preceded by a preliminary
examination and a committal or not, indictment to lay only on the tiat or
permission of one of the judges who might sit in the court where such
indictment is to be, or can be tried.
" 3rd. When the magistrate refuses to commit, as under section 80 of the
Procedure Act, then the direction of the attorney -general, or consent of the
court, or of a judge having jurisdiction, to be obtained and to stand as the
finding of the Grand Jury.
"4th. Extend section 140 of the Procedure to all crimes and
misdemeanors (see Tasci>ereau"s Criminal Law, second edition, p. 709) where
there has been no preliminary investigation and decree, the direction of the
attorney-general or the consent of the court or judge to stand as the finding
of a (irand Jury. Give power, where necessary, to summon and hear
witnesses in support of the charge, to prove a priwa facie case, also to receive
affidavits. This, of course, in private prosecutions also.
",1th. As to binding witnesses, prosecutors, summoning defendants or
arresting accused parties, the judge might do all these proceedings upon an
applicatitm by the crown prosecutoi', or clerk of the crown, or private
prosecutor. In case of bailable offences, he might direct the accused to be
i)rought before him, or before a magistrate for the purpose of giving bail.
"Gth. There are miineroua matters of detail which would necessarily
have to be provided for, Init I conceive no difficulty wliatever to find
regulations for the whole of them. It is a matter of study, combined with
experience in the practice of tluvt brancii of the law. Assistance would
undoulitedly be found in tiic reference to the Scotch and Fiench systems,
where there are no (Jrand Juries. I believe that in Italy also tliere is no
jure d accusation ; of this, however. I am not (luite sure as the law there now
stands.
CORONERS, CORONERS' JURIES AND CORONERS'
INQUESTS.
"Second Clown — Nay, but hear you, good man delver.
Kirst Clown— (live me leave. Here lies the water; );ood ; here stands the man ; good : if
the man go to this water, and drown hiinselt, it is, will he, ndl he, he goes.
Mark you that, hut if the water come to him. and drown him, he drowns
not himself ; ar^al, he that is nol guilty of is own death shortens not his own
life.
Second Clown— I'ut is this law?
Virst Clown— Ay, marry is't ; crowner's 'quest law."
— SHAKKSI'ICAKK.
It is evident from the foregoing and other instances given in the course of
his works that in Shakespeare's time coroners' iiKjtiests were not considered
to be (juite up to tiie maik, and therefore the immortal ilraniatist tiiought
them Ht subjects for his keen satire.
Tiiere can be no doubt tiiat since tiiose days the progress of education
has vastly improved the intelligence of the material from which these bodit's
are generally drawn, but it is a hap-hazard system at best.
As to the coroner himself almost anybody in Ontario was, up to a few
years ago, eligible to fill that otiice, and these positions were bestowed by the
party for the time being in power on political partisans only, the (piestion of
capacity or fitness being considered, apparently, of secondary importance.
A great im])rovement was made when only medical men receivi;d these
appointments, because the usefulness of a cort ner's jury is no doubt nuith
enhanced by luiving an intelligent head to preside over and instruct them. If
the new C'anadian ('riminal ("ode did not, after .luly next, practically abolish
the functions of the coroner in cases of murder and manslaughter a still
greater improvement over the a])poiiitmcnt of medical men might have been
made if the otHce had lieen filled only by a police or stipendiary magistrate, a
lawyer or other competent person of experience accustomed to deal with legal
investigations and well accjuainted with the rules of evidence, whose finding
or verilict of guilty might with safety be regarded as sutticient to place the
implicated party on his trial direct liefore the (irand.Iury or public prosecutor,
as the case might be, as in ordinary cases. This would prevent the conflict
as to jurisdiction which sometimes occurred between the coroner antl the
ordinary magistrate, and the general public wotdd be spared the spectacle of
seeing one l)ody acijuitting an accused person or finding him guilty of man-
slaughter, while another brought in a verdict of manslaughter in the first case
or one of murder in the other.
The methods occasionally adopted in some parts of Ontario a few years
ago, when rival coroners vied with each other in their unseendy eflbrts to be
first in the field to hold intpiests in cases of homicide will not soon, be
forgotten. When such disgraceful tactics were possible it was high time for
the Ontario Legislature to pass a preventive measure. W hile f)bjections are
sometimes heard as to the manner in which the law is adnnnistered under
this statute tr) the eifect that undue economy is often practiced, and cases
are passed over which the public have consiilered gravely suspicious, it may
safely be assumed that a responsible officer like the county attorney will
scarcely decline, when called upon, to issue the necessary certificate unless he
has good grounds for doing so. At all events, the act requiring this
certificate has withstood the objections to it and has never been repealed.
In the Canadian Criminal Code introduced this year by Sir John
Thompson, and which is to become law on and after the first of Jul}', 1893,
^0
gome cliaiiges have boon iiiudu toucliiiig the proceedings in cases of murder
anil niiin.slaugliti'r hcfoie a coroner. Section iKiS of this code, which is called
" I lie Criminal Code, 18!)2," enacts as follows :
"Every coroner, upon any impdsition taken before him whereby any
person is charged witii manslaugliter or mui'der, KJiall {if tlie peison oi'
j)er.sons, oi' either of tliem, atl'ected by sucli verdict or tindiiig be not already
charged witli the same oHence Ijifore a magisliate or justice) by warrant
under his liand, direct that such person be taken into custody and be conveyed,
witii all convenient speed, iiefore a magistiate or justice ; or such coroner may
direct such pci'son to enter into a recognizance before him witii or without a
surety or sureties, to appear bcfoic a magistrate or justice. In either case it
shall be the duty of the coronei' to transmit to such magistrate or justice the
depositions taken l>efoi-e him in the matter. Upon any sucii person being
brought or a])[)earing before any sucii magistr,atc or justice, he siiall {)rocccd
in all I'cspccts as though sudi pcr.son had Ijcen brouglit or had appeared before
him upon a warrnnt orsununons."
Section ()42 enacts that "after the commencement of this act no one
shall be tried upon any coroner's incjuisition."'
After the 1st of July ]S!)8, therefore, when the new code comes intf) force,
the procedure with regard to the in(|uisition taken in cases of homicide by a
coi'oner will be changed by the ."((iStii section. Hitherto, the coroner lias
acted in his judicial capacity (piitc independently of the magistrate and the
magi.strate of the coroner, and a suspected pei'son might be dealt with by
either or botli. This section, however, provides that if such peixm has not
been already charged with tiie ofl'er.ce before a magistrate or justice, and the
verdict of a coroner's incpiest implicates him so that he is charged with
manslaughter or mui'der, the coroner is recjuired to issue his warrant dii'ccting
that the accused be ari'cstcd and conveyed before some magistrate or justice
to be named by him, or direct that he enter into a recognizance before himself
to appear before such majiistrate or justice, because section i'A'2 provides that
no one shall be trikd (meaning, of courf"^, in cases of this character by a
jui-y) upon any coroner's incpiisition.
So that, 1st, the coroner, instead of committing to the common gaol a
person charged with manslaughter or murder by the incpicst to stand his trial
for the ort'cnce charged, as heretofore, issues his warrant directing that the
implicated jier.son shall be taken Into cus'.ody and conveyed before some
magistrate or justice to be named in the "'urrant ; '2nd, the coroner is deprived
of his former judicial authority to commit ; 3rd, the coroner is authorized, in
a proper case, to direct such ])erson to enter into a recognizance to a])pear
before a magistrate to be named, to be dealt with by him ; 4th, the coroner' is
reijuired to transmit the depositions taken at the incpiest to the magistrate,
and ."itii, the magistrate proceeds witli tiie case when brought before him
without the furtiier intervention of the coroner, in the same way as if the
person luid been accused before him in the first instance, and as such a j)erson
may now be dealt \\ith, notwithstanding the finding of a coroner's in(iuest.
It should not be overlooked, however, thai the coronci''s in(jnest will
still be valuable, if not in(lis))ensable, for the purpose of ascertaining iiow a
person found dead came to his death, and whether by foul means chargeable
to the crime, or default of same otiier person or persons known or unknown.
If the verdict of the coroner's jury was one of ac(iuittal, and if the ])lea of
fintri'fnk aciiiiit could be pleailed to any indictment afterwards which chaij^ed
the prisoner with the t^ame offence, I could see some use in having an accused
person brought before a coi'oner, viz., on the chance of such an ac(|uittal, but
as an investigation before that officer is merely in the mitiire of a j)ieliminary
inipuiy and docs not prevent the matter being brought befoic a magistrate
and a (Jiaud .Jury and being tried by a petit jury, I can see no fjltjcct in con-
tinuing the funclious of tiic coroner or his jury in casses of homicid*', bccauoe
m
no iiuittcr what nuiy be tlie isaiiu of an iiiquiiy l)efort> him llic uauu imiHt
afterwards coiiio oefore a magistrate or justice an no (h)iil)t the rode
eontemphitcs it shoidd.
Again, the county attorney will douhtleas soon see the ineonsecjuent
nature of the proceedings before coroners and will witiiliold the necessary
eerlilicate in cases where it is reijuired, and tiie matter will then come before
a magistrate without a certitioate being needed and in the usual way.
The duties of the coroner apart from those just detailed, which, as already
mentioned will piactically cease after the Hrst of tluly, 1S9.'{, will still consist
of those devolving upon iiim nndei' any act of any of the provinces of the
Dominion recjuiring him to hold invealigation.s in casus of accident by Hre (in
Ontario, R. .S. O , Cap. 217.) Also the services anciently recjuired of him in
those very rare civil cases when just exception can be taken to the sheriff
for suspicion of partiality (as that lie is inte ested in a suit or of kindred to
either plaintiff or defendant) or in proceedings against the sureties of a sheriff
(as in Ontario H. S. O., Cap. Ki, .Sec. 24) or under the Anatomy Act, R. S.
O. , Cap. 149, Sec. 7, or under the acts of any other provinces of the Dominion
wherein any duty is cast upon him.
As stated in a former part of this review, there are no coroners in
Scotland ; in that country the duties which devolve in Canada upon coroners
and coroners' juries are performed by the procurator fiscal.
In the event of the fjirand Jury being abolished in Canada the public
prosecutor could, with great advantage, perform the functions of the coroner
and the magistrate respectively in cases of homicide, as set forth in the new
code and as near as possible in accordance with the Scottish practice.
Provision could be made for dispensing with the certificate of the county
attorney and making the public pi'osecutor competent to incpiire in the first
place whether it was proper to hold an incjuest at all, and on considering
there was evidence to justify it then to take charge of the subset^uent
proceedings.
If this were done the duties hitherto performed by the ancient coroner's
inquest woulil, incases of homicide, be altogether abolished, the matter to be
iiKpiired into would come before the public prosecutor alone, there would be
no coroner's jury, no (Irainl 'lury. the case would be the same as any ordinary
iiujuii'y into suspected «rong-<loing, as why should it not? Ample ])ul)licity
would l)e given, a competent tribunal would be at hand expedition would be
assured, innocence estal)lished and at once relieved and guilty persons com-
mitted to stand their trial hciore a jury of their peers as in other cases of
crime.
Up to the present time the sight has occasionally been witnessed in cases
of homiei<le of an inijuest before a coroner and an incjuiry before a magistrate
over one and the same offence. The accused, in the event of a committal by
either or both of these tribunals had next the luxury of haying his case pre-
sented before a (trand thiry, and if a true bill was returned then of going
finally before a petit jury and after all that circundocution emerging possibly
with a verdict of acquittal. Tt would appear that after running through such
a fiery ordeal it is rather a ricli joke for the law to say that a man is always
presumed to be innocent until he is proved to be guilty ; having made four
assaults upon his liberty, and perhaps upon his life, the prisoner, if eventually
acquitted, might well rejoin, " thank you for notliing "
A person should scarcely be consi 'ered as sympathizing unduly with
crime or criminals if he were to say that there ought to be a remedy for such
a state of things as this, even improved a little as it will be under certain
circumstances after the first of duly next. All that would appear to be
necessary to add tf> these cumulative delights in order to make a prisoner
supeilatively happy would be to go back to the old law and deprive him of his
(il
l.uiioHl <.tolLTgy or, liU ii.in.l iMAJng Iktm «ullin,.Mllv tuitii.LMl, .>
I'ody to undergo the Iioitoim of
Mciilciui; \['\n
" The lifted a.\o, lh<: aKoni/iiit; uIklI,
l.iikfMroii trowii ;ui<l Daiiiicns hid of ^lcc•l."
•^I'akospoaresurdy sv,.,s.nistuU.-nulu-n lR-n,:i.U. Portia say thai inoirv
..sanattnl.utoto(io,||,i,„„.|f, a.nl ..uthlv p-uvr .loth t hon show lik..st
(.oils wlifii iiiorcy HcaKoiiM jiistifo.'
CRIMINAL INFORMATIONS, ETC.
Soiiit! of till! opiiiidiis piiiiiDiiiu'cil iiilvtM'sely to tlio iiltolitioii of tlu; (•laiiil
.litiy liiivu ))ueii inaiiift'Htly in foi^t.'tfuliic-H.s that ill llin prtiHciit tjiiic it in mtl
ill uvory (wihu iiii osHL-iitial tiiat. ii |ii'us(Mitiiu:iil hIidiiIiI Ix; iniido l)y a ( iniiid
.Iiii'V, and tlial in soiiir ((tiicr I'ascH Mpccilied l)y «ti\tut(>iv t'liactnmnl jiiciiiii-
inary |ir()('oi'iiin>{s iiiiiHt lie tak(>n, licftiri' a (ii'and •Inry in pcnniltcd tn deal
with tlifiii. I>y way of iciiiindtr, I would nit-iition wliat I tind laid ilown in
("liitty'M Criminal Law and otlicr aiithoiilics— tlial paititH «uspeil(.'d of I'liinu
may he hrought to juHticu tiillitr hy ii previous finding of u fact hy an in(|U<'Ht
of (irand .Jury, or without thi8 proliniinary Hanction. so that it may ho hy
imlictment, i)reMcnlimMit hy a (iiand duiy of any oll'cnce from their own
knovvh'dge or ohservation without any hill of indict nicnt laid hcfore them, f)r
hy coroner's in(|uests in case of homieide ami the verdict of a jury in a civil
case. 'I'hen there is the eriminal information Ix'fort; tlu^ high court of
justice l>y the attoi'hey-general '■xojfiiio, or hy leave of the court, which can
he tiled for misdemeanors only. No man can ))u put on his ti'ial for a capital
otleuce or for niis|M'ision of treason without tlu.' accusation against him heing
fouml sullicicnt hy twelve of his countrymen hy some of tlu; methods lu'fore
enumerated. No such information could he iiled without previous leave of the
court in which it is exhihited, heeause instead of ia.'ing presented on the
linding of twelve men, it is meiely the allegation of the oliicer. (See Bac Ah,
Information A ; and lUirn .1. Information).
In suhstitutioii for all this, an oHicer whose special duty it would h(^ and
whos(' trained mind and long |)racti(!e would j)ecidiarly lit him for the work,
it IS suhmittcd, would he a far prefera))le and in the interests of puhlic
justice and of the accused, a safer mode than that of having minds totally
iuex|)erienced hrought to hear upon suhjeets heyond the range of the average
(Jrand .luror and especially so in view of the serious allegations and damaging
suggestions that have heen made quite recently as to the comluct of the (Irand
.Jury, who ignored certain hills of indictment on state j)rosccutions in ihc
I'roN incc of (^uehec.
Candor re(mircs at my hands the picsentment of tlu: condition of things
in two States of tl.e American Union. During the couise of my numerous
eiKpiiries I have found to exist in that country as there does hert; a divei'sity
of opinion, and a lawyei' of eminence thus states the case; ".My natixi;
"State, Michigan, has no (iiand •Inry. There! all examinations are jmlilic.
" iiefoie a justit'e of tlu; peat^e, who can hind o\er the accused for trial as
" at eii'cnit. This coiu'se is often expeditious. Hut crime is n) secret that 1
"am inclined to think it wise that it should also he investigated under the
•• secret gaih of the (irand .hiiy.
"In New N'ork our (!rand .luriet* fre(|uently make inves'igations into
" puhlic scandals that would he quite impossihie in ]iid)lic hefore our polici!
■• justices, who are the creatures of the eoriiipt rings that are themselves
"frequently investigated hy the (Irand Jury. Our police justices ar(!
" fr(!((uently ignorant, vicious and lazy, and would never ludd for trial a
" confederate charged with ])eculation(>f pul)lic funds. The politics o*" New
*■ York City is such a perfect machine that any crinnnal th;
" votes can go to his district leader, wiio will intercede fr'
" police justice, and justice; is the merest mockery "' An''
'■ goes on to descrihe what may strikingly he the i
" the Province of (,)uehec and the other Provinces «.
" You will please renuMuher, however, in foiniing
" conditions in Michigan aie widely dillerent from
" and Hrooklyn. Here a majority of the voters do iu)t apt
" least, <h) not think in Knglish, while in Michigan we have a native .\mericai
" population,"
h
I
Don.
iir jud:
those ii
Fo
ihe
lent
V een
avH:
a 1
or
^ nt, ti'at the
.New York (^ity
Knglish, (U', at
THE CONSTITUTIONAL QUESTION.
"I,aw is law, innviilfil always, a id unless as licrciiiaflcr nieiuidiiL-il, in anywise wlialsocvcr :
l)iit f,rasiniii.li, and wlierras, except as afnrcsaiJ, llicrefore, Lousciiucnlly and as hercndjcfuie
provided, law is law, imlw ItlisiaiulinK . iid nevertheless,"
III till- yt'iir IS77, llit^ MoiioniliU- Att nicy < Ii'iuMiil (now Sir Oliver)
Muwiit and the Uniioi alilir Mr, Liillaiiiinc, tlifii MiiiJHlrr of .liistifi- for the
Doiiiiiiioii, t'ii;,'ajf(Ml in a cono.sitoiuluni'c I'onctiriiinj^ tiu) ri^lit to h;gislat<! witli
rcjfiMiMice to (liaiid .luiit'S, widi aj^rtiniiig alioiit tlu; piopiit-ty of olilaiiiin;,' n
jiuUcial opiMioii from tlie Hiiprciiic (;ouit. In tin; yeai- \H~\\ tlie Ontario
^ov(M'nnu;iit siiliniil li^il ('(.'itain i|ii('.stioiiM for lliat court to Mr. Lasli, tlic
ik'piity niini.stor of jirslii'i-, and siiorlly afterwards Mr. Lash agrci'd to the
propoHLMl (|iiosiion8.
On .January 'ilUli, 1HS(), Mr. Lauli wrote, desirinj^ to know if tlu' Ontario
j^ iverninuiit woiilil li • ready to go on at tiie ensuing .sitting.^ of the .-^iipreine
e.mrt, and on tlu; iuiii of tlie following .Maicli he aj,'ain wrote that as .Mr.
Mowat had not heeii ahle to argue the (|iiestion and as the time of disallow aiu'e
was* near at hand the Ontario (iovernmeiit should " send a formal communiea
tion to this goveriniiiiit stating it is not tlu; intention of your governiiuMit to
liring the (Local) Ai't into force " until a decision is arrived at in the .supreme
cimrt upon tiie (|iiestion and "that if the decision ln^adxei'se to the legislature
the Act will he rejioaled.'"
On the loth of March, 1880, an orderin-council was forwarded to the
lieutenant-governor of Ontario concerning local legislation ; with regard to
the t(uestion of tlu; (Jrand Jury Act, the ordtM-iiicouncil set out the
agreement referred to, and then went on : " I recommend that if the Oiitaro
government will agree not ti> put it in operaiion and to repeal it if it he iillni
virion, the power of disallowance l)e not exercised, otherwise that it he
disallowed, and that the lieutenant-governor he so informed
On the I8th March, 18S(J, the llonorahle I). A. Macdonald, lieutenant-
governor of Ontario wrote that " with a view of enahliiig the Dominion
government to dispose of the niattcu' without emharrassmeiit, my g(i\erniiieiit
will not issue the proclamation which is necessary in order to hriiig the Act
into etlect wiihout either the assent of the government of Canada or the
decision of the supreme court or the privy council, that the siihject matter
of the said Act is within the authority of the legislature of this iirovince."
In May, 1880, .Mr. Lidi telegraphed .Mr. .\Iowat to know if Ik! desired to
have the case hrought hefore the suprcnie court.
In Septeniher, 1880, Mr. Mowat raised the ohjection that as a case for
the supreme coirt prevents an appeal he could not consent to the case going
to the supreme court.
Shortly after this correspondence was coininencod, the Ontario
legislature, 1»y 42 Vic, Cap l.*l, Sec. 1 (Ontario), enacted that "the
))recej)ls to the sheriH' for the ii'turn of (iraiid Jurors for the sittings of the
courts of Oyer and 'reruiiner and general jail delivery should eommaiid the
return of fifteen of such (irand .Jurors and no more."
By section .3 it was provided that the Act should not conic in force until
a day to be named l>y the lieutenant-governor hy his proclamation.
This Act was as.sented to by the lieutenant-governor on the lllli of
March. 1879, Imt no proclamation e\-er Is.sihmI declaring it to he hi.w.
(14
By .M Vic, Taj). 12, Sol-. 1 (Ontaiiu) llio. liisl,ineiitioiu><l statute was
repe .led, and hy suction '2. tlurtocn (Jraiid .lurois. instead <if tiftccit, as in
tlic foiniei' Act, wei'e retjiiired to l)e summoned.
'I'liis Act also \vu.s not to come into force until prcclainicd hy tlu;
lifutenautf^ovcfnor'. As no proclamation has yet been issued, as re(|uiied l>y
llicAct. and as tiie matter has nevei- heen hefoi'e the supreme court, the
cdiist ilutiuMal < I nest ion as to whether or not the suliject is oi' is not iiltrn vins,
the jirovincial l(j;islatni'e is still unsettled, although, leading lietween the
lines, it woidd appear from tlie fact of the legislature adding the clause that
the Acts were not to become law until the issue of a j)roclamation, there
were and ai'c doubts as to their constitutionality.
'riie legal journals of ( (ntario, in t'xhaustive ai'ticles, refute the idea of
provincial jurisdiction, hohling that all legislation in the matter of criminal
jiroceduie lies with the federal ])ailiament. Kven were the provincial right
concuri'ent the federal parliament, for the sake of unifoimity of ])roce(liue
throughout the Dor.iinion, ought, it is sid)mitted, to be the proper body to
legislate on the subject.
Sir John 'i'hompson, the able minister of justice, in moving the second
reading of his bill respectini' the criminal law in the House of ('onimf)iis on
the I'itli of April, KS!I2, is reported in J/niisord to have said: " '1 he
]»ro])ositi(.n has be( n nu i)ted long ago, that this nuitter may be beyond the
(diitrol of this ]iai lianient, and may be nioie j)ro])erly exercised by the
provincial legislators. When we cfime to di'al jiractically wi'.li tlie matttr,
liiat dili'creine .-ecins to n.e to vanish. It is not a t|Uestii n after all of wlu'thir
the (iraud .liiry I'oiins a jiart of the organi/atieii of the courts or not, aiitl,
therefore, is under pi ovincial control. It is a ([Uestion whether, in criminal
procedure, it is desirable to continue the exercise of functions by the (irand
•lury. And in adopting an amended criminal j>r()cednre, I take it to be
lieyond doubt that the (|Uestion as to wlu^ther we should or not dis])ense with
the ser\ ices of the ( Jiaiid .lury, is one which is included in that division of
the criminal law. '"
Sir Oliver M"».vat, on the other hand, says that "the Ontario government
claims that the abolition of (irand Juries is not within the authority of the
|)omininn iiarliaiuciit : that the ( irand Jury is a pat t of the constitution of the
CI urt, anil is not a matter of mere procedure."
He fill (her says : •' If the change jirov ided by the i'lovincial Act should
eomniend itself to the minister of justice, he might introduce into his inti iidi d
bill, clauses corresponding with -liJN'ic., Cap. l.S (for which miglit now be
substituted .").") \'ie., Caj). 1*2, as the former Act iias been now repealed liy the
latter) in case he appiT)ves of these. Or if he should ])refer any variation we
might luue siimiltaneous legislation, so as to avoid any i|uestii)ii of constitu-
tionality. I do not recollect that any objection was made to the eliangc
proposei', except as legards the jurisdiction of the legislature to make it."'
Some of the judges, whose attention has been drawn to the subject, agree
with Sir John 'riiompson, while the late attinney general of l^ritish Columbia
agrees with Sir Oliver .Viowat.
THE GRADUAL DIMINUTION, BY DIFFERENT STATUTES.
OF THE DUTIES OF GRAND JURORS.
The duties of tlie Oriuwl .Jury Iwivo lieun very seriously curtailed by
modern leyisliitiou It iuis !;.eii considered tliat not nioie tlian one-fotirtli of
tile eases, wliieli toi mei'ly eaine l>>'fore tiiem, are now heard l)y tliat l)ody.
Tlie Ei)i/i!r'\ in a recent issue, says tiiat " in tlie earlier stages of English
and colonial Instory the ( irand •Uiry fnllilled very important functions, such
as the institution of proceedings for tlie aholilion of nuisances, the care and
safety of jails and ))ul)lic huildiiigs. and the (indiujj; of hills of indictment
against jjcrsons accused of crinu.' I>ut in cousecjuence of the estahlishnient of
municipal institutions, hoards of health, police mauistrates and other jnilicial
oHicei'H sonu!\vhal verse<l in law, l>y whom accused persons are coninntted for
ti'ial, the l)eni'tits which were formerly secured hy the (irand .luiy 'ire attained
hy thes(! other means iind ])aiticularly by municipal machinery." His Honor
.ludg(! Hughes remarks, imdcr this head, as follows: " By tlie passing of the
Speedy Trials Act, in IStiS), the legislature not only, in certain cases, did away
willi the (iiaiid hut ahso with tlie Petit .lury. and since then the Attt onfer-
ing a like jurisdiction u])ou police and stipendiary magistiates, the Juvenile
()l1'enil(!i's Act and the Summary Trials Act, it has been found that fully one
half, if not nioi'e, of the trials foi- crinnnal otl'enccs are, liy consent of tin;
persons accused, never biought befoic a jury ; and it is found also that those
who are innocent of crime ])refei' not to l)e tried by jury, but ))y the judge ov
magistrate alone, and that those who are guilty, demand a trial by jury, in
tli(! hope that between the shiftings and shutllings and ])rejudiceH and chances
of the jury system, they may escape " scot free," and thereby defeat the ends
of justice-, which has been too often done by the jury shielding a crinnnal with
whom they have strong political or social sympathies."'
CONCERNING THE PRESENTMENTS OF GRAND JURIES.
As very forcibly jiut in tin- /.(iir JoiininK of .January, 18!12: "To obtain
a pro))er and uidiiased opinion regarding any subject it is sni-ely not necessary
or safe to extract information from those whose I'xistence is imperilled by the
discussion. We must, therefore, look for our facts and information outside
the ( irand .lury room. " • ' In addressing ( Jrand .luries, judges
almost invariably point out to tiicm the necessity for the system being
continued, the. grand old historic charactei- of their body i.s eidogised to the
highest degree, and the jurors iiave it strongly impressed upon their mimls
that they stand as a bulwaik against opjiression and tyranny, and constitute
the most impoi't ant factor in t he .idniinist ration of the criminal law. After
l)eing addrt'ssed in this way for half an hour or more, the good and true
yeomen ami s(piires, constitui ing the (iraml lury, are naturally tilled with
strong ideas of their own greatness, nnd are convinced, when told of their
impoitance by a liigh judicial authority that- the constitution would be
imperilhd if the shutters were j)ut iij) ami the dooi's of the (Jrand .Jury room
closed. We may also |)oint out that in several instances < ii-and .Juries them-
selves have favored a t'hang<' taking, perhaps, in such cases, something of the
s|)iiit in whii'h they wci'e addressed iiy a judge cpposed to t heir cont inuance.
(In the whole, therefore, we say that the opinions of (irantl .luries aie not
entitled to tlie weitdit which sluudd be attached to them in dealing w ith a
((tiestion so personal to themsehes as this undfiubtedly is, ami \\" v<'nture the
opinion that iiy taking a ceitain coiuse, one way oi the other, in his charg'-.
tlu! judge would (ilitiiiii ii r*^|)1> wliicli would lie Itut tlic i-ellex of Iiisowu
\Il!Ws dt'livfied at the opening of the c(»urt.'"
Tlie Dundiis 7'riii /tuiiiifr, of the 'ir)lli Fehriuiry, I.S!I"2. tiuus tieiuhaiilly
<leals wit li tills view of the (|uestioii, ami is, |)erlia])s, too severe: "What
soeuis to he ilu' uDst absurd i<U'a in eonnection with the diseussion, is the
attempt to elicit from (hand .Juries a prayer and a jjlea for their continued
existence. One judge made constant ajipeals in this way and then gave the
hotbed productions, stiniulateil by himself, as evidence in favor of the
continuance of the (irand .lury system."'
The following from the Dnndas 7'/-,7c /^a/;/(PC, of October '21^1, ISOf), may
alsct be ((uuteil : ••'I'hc (irand .lury that was asked tiu; other day what it
tlu)Ught about the (Iiaud .liii-y system, responded that it thought it sliou d
not be abolished, and its resj)onae is a very natural Mue. It is not, an easy
matter for a body liUe the (irand .Jury to admit tiat it has survived its
usefulness, and ask foi' its own deca[)itation, although oven t'lis has occui'i'od.
It seems strange that opinions should be asked from (iraml .luries on a sid)jeet
of this land. They have not the knowledge oi' the experience that would
make their ojjinions valuable, many jurors serving perhajjs only o ce in a
life-time: yet it is done. \\'e can understand addresses to juries being used
as almost the only occasion when judges can call attention to tlie need fo)'
some reform in administration, and giving reasons for it, but it looks like a
confession of weakness to endeavoi' to proj) up the (irand .luiy system by
obtaining cvidenci fi'om changing bodies that their continued existence is
desirable. Important changes, like the abolition of tlie ( ii'and .hiiy system,
take time to accomi)lisli. We shall ])robably iiave to wait for the occurrence
of some g ariiig instance of failure of justice before much hea<lway is ina<le- -
something that will a])peul to the general public. At present the matter is
assigned to the technical. Hut those who have exj)erience in the administra-
tion f)f the law must feel that the (irand .Jury is a tiflh wheel to the judicial
coach, and that the Scotch system, where the (irand. lury is unknown, is more
desirable. "
Sir .Johti Thompson, speaking on this point in the House of Commons in
April last, siid : " The circulars which were addressed to the judges and the
prosecutors and the attorneys-general throughout the country, had, as one
result, the eftect of calling the attention of the (irand .Juries themselves to
the ({uestion; and even from them divei'se opinions have come. The criticism
to w'iiii'h I refer is this that it was most unreisonablc to expect from tlie
(irand lurors any expression of opinion favorable to the discontinuance of
their functions, ami that it W')uld be ])ractically like consulting parliament as
to vliether parliament shouM be abolished or not. Speaking from my own
extjerience, which has been pretty general in the |)rovincein wliich I practiced
(2n ova Scotia) the contrary is the fact. The (irand .lurors of that province
have nearly always been in favor of the discontinuance of theii- services,
l)ccause those services they oon.sider onerous antl unimportant."
As cf)rroborating the view set forth in the abf)ve news[)-n)er extracts and
in Sir .John Thompson's remarks confirming them on the .nain point, I desire
to say that I have had the curiosity to examine, at random the piesent ments
of thirteen (irand .Juries of diti'erent counties of the Dominion, and find tiiat,
out of that number, only two had the courage to diHer from the views
expressed l)y the presiding judge. One of these pi'esentments, made to Mi'.
.Justice McXIaiion (who opposes abolition) was to the following effect : " In
accortlance with Voui' Lordship's wishes, we have carefully considered the
(irand .lury system as at present existing, and are of the unaniirous opinion
that the interest. •■istice will in no way be endangered by its abolition, and
that some other system, less cundiersome and expensive, be adopte<l in its
place."
(iT
Aiiotlier piipu. says : " It is a. pleusiuit little episode for a man once in a
lifetime to l»e on a (hand .liny. He lias a nice time at the county town ; the
(ixpensc'* of his journey to and fro are liheiully paid ; he gets his meals at the
hotel for nothing, the hill being paid hy the county. It is really expecting
too much to ask (itand Jurors to forego all these ad viuitages, "liow could
Cirand Jurors, under the ciicumstances, douht their being ' bulwai ks of tha
canst i ution ' and ' defenders of the liberties of the people V ' How, indeed ?"
THE USELESSNESS OF GRAND JURIES IN EXAMINING
INTO THE CONDITION OF JAILS, HOUSES OF
INDUSTRY, ETC.
One of the functions of tlie gfantl iiKjuesl is to examine into and report
U|)oii tlie eomlition of jails, iiouses of industiy, insane asylums and other
public institutions, and sonir people lay considcralde isti'ess on the ini})ortanee
of tiiese duties.
It is rather siguiticant that of the ninety-seven judges who sent iej)lies to
the Minister of .Justice in response to his circular, only eight make any refer-
ence to this hranch of the sul'jeet. Of these dudge McHae, of Algonui, says :
'■ Xs to their otlier functions of visiting jails ami other pul)lic institutions, 1
have never known their reports to he of much, if indeed of any, use. They
are generally looked upoi pretty much as a nuitter of coui-se."
Judge Fraliek says : " The appointment of provincial inspectors makes
their supervision of jails, etc., unnecessary.''
Judge McDonald says : " Lastly, I helieve the (jrand Jury have not
that weight or iniluence in the community which it might he supposed to have.
It has been more or less my practice in addressing the Orand Jury to deal
with it as composed of representative men di-awn from different sections of the
united counties, and to call attention to local matters in reference to whicli it
seynied desirable action should be had — such as the provision of a poor house,
so that persons innocent of crime, but unable to support themselves, should
not be committed to jail. I have had every reason to be satisfied with the
response made ))y the Grand Jury to my suggestions, as embodied in its
piH'sentnients. lint although copies f)f these presentments, f)r of such part of
them as seemed needTul, have been from time to time directed to be for-
warded to the county 30uncil little or no iniluence a])])ears to have bt^en
exercised by them upon that bcxly, and the representations or recommenda-
tions made have been useless or comparatively so in procuring such legislation
as it was aimed to ol)tain. From this I am led to the conclusion that the
(•rand Jury, as a representative body, has little or no weight in the
community."
On the oilier hand Chief .lustice Hagarty says; "Jt has many useful
functions besides the presenting or ignoring of indictments."
Mr. Justice Hose : " 'I'liiough them the l)ody of the ])eo])le cm l)e
reached and a heilthy |)ublic tone created w iiencner in the public interest the
judges feel called upon to direct attention to new legislation, or evils reipiiring
redress or legislative interference ; oi- when dangers thi'eaten our system by
the combination ot forces, political or otherwise, a w.se deliverance on the
subject in charges to the (Jrand Juiy does much to awaken inteiest, i-emedy
ab\ises, explain fallacies, ar.d generally assist in the jjroper adnunistration of
public affairs. Througli the (Jrand Juries we an'al)le to ))!ess u])on the pid)Iic
the necessity for various reforms, sucii as prison reform, care of non-criminal
poor, improvements in the eouit houses, jails, etc., etc., ami to receive fnnn
them nniny suggestioi\s indicating the treml of outside thought and
opinion."
Judge Reynolds, juni' r judge of Leeds ami (irenville, says: " 'l"he
(Irand .Jury is :i great educator of the people. Selected as its members are
from all ])arts ot the county and I'epresenting all shades of public opinion, they
discuss tl>e several topics which from time to time are so lucidly laid before
tiicm l>y tiie jud.'c,.! of assizj and sessions, such as the necessity for i)roperly-
(i!)
treated, well- ventilated and tliorongldy drained jails, court houses and jjuIiKc
offices, suitable provision for tlie indigent, idiotic, lunatic and incurable, tlie
establislinient and carrying out of needful sanitary regulations, etc., etc., and
on tiicir return to tlieir lionics, tiiey take with them the ideas they have
ac(]nired, and tiuis jiuhlic (jpinion is nioidded, tiie reeves cf liie several
municipalities are instructed, and the hands of the county councils aie
aliengtliencd wiien the time conies to make an appropriati< n for any <f tiie
objects above named."
Judge Wood says : "I think the reference freqnently made to tlie good
efTect of visits l)y (Jrand Juries to jails and other public institutions, and the
dangers that would ensue if these acts were discontinued by reason of tiie
abolition, can be met. No doubt tlicse visits do good, both directly and
indirectly, and may lie continued by taking thirteen or more or less from the
panel [of petit jurors] either by special selections or inditlerently, and
swearing tiiem t:> make the eiii[uirics and [iresent tlie result."
Mr. Justice Peters, of Prince Edward Islanil, says : " 1 need not remark
that the duty of a (irand ilury is not coiitiiied to the investigation of charges
for crimes vvliicli m ly br; brought before them at tiie sittings of a court. iTut
their duty is also to visit pul)lic institutions such as prisons, lunatic asylums,
etc. , to examine into the nrinner in wliich the officers and keepers of said
institutions [lorfor.ii tlieir several functions, and to examine tlic sanitary
condition of such institutions and present their report thereon to the court.
In my long experience as a judge I have nvjt with many cases in wJiicJi the
exercise of this visiloiial power of the (Jrand Jury has been the means of
exposing great dereliction of jiublic duty."
It is not a little singular that only these eight judges should Irive
considered the duties of (irand Juries, as to this branch of tlie subject, of
sntlicient importance to lie allmlcd to ; three of these being of opinion their
services were valueless, one suggesting a substitute, and that therefore only
four should say these duties were important.
I think Judge McDonald has hit the nail squarely on the head when he
says lu! has had cvciy reason to be satisfied with tlie response made by the
(lirand -lury to suggestions iiiadt; by him in his charges to them, but that little
or no influence appears to have been exercised by them, and that their repre-
sentations and recommendations were useless, or comparatively so, in
procuring such legislatifin as it was aimed to obtain.
As a rule I think it will be found that the preparing of the present-
ment is left in the hands of 'he foreman, and that this document sinijily
echoes the charge of the presiding judge in a stereotyped and formal fashion,
makes certain recommemlations and suggestions, and there the matter ends.
As a rule, also, county councils rather resent tiie interference of " the fifth
wheel to t'.ie judicial coach." ;is an uiiwarranUiblc nsurpatioa, and will siiiijily
not legislate at all if they are asked lo do so by that body.
As the country already pays high salaries to jirison inspectors whose
duties cover the ground much more satisfactorily, the prison authorities never
having notice of the coming of these officials, it may be considered conclusive
with reference to this matter that the services of the (trand Jury might easily
and profitably be dispensed with.
The Toronto Afail ot March Tith, 188!), says : "In that they visit public
institutions, such as prisons and asyinms, they do ))erforin some of the old
duties. 'I'Jieir work, however, so far as this feature is concerned, is merely a
duplication of the labors of the inspectors. It discovers no wrong and
produces no results beyond a prefunctory report upon the condition of the
institntions examined. ""
An editorial in the Toronto Week of November, 18!)0, says : " Among
the fnnclious of the (Iranil Jury, Senator Trudcl once jiointed out what
70
seoiiHMl lo liiiii to lie a moul useful out', viz., that it is a kind of coiiiniission of
gcMU'ral ou(|uiry into tiic workings of jirisons, asylums, and othor pulilio
institutions, in which its usofulnohs is s|)ocially seen. Mut to those wiu) know
anytlung of the practical working of the (Jraiwl Juries in such cases, it is
known that the institutions which they insjx^ct are always jwi^pared ami
clean-swej)t f r the occasion, while the ins|)cctioii consists of a I'un through
tlic liuiiding at tlie heels of the waiden or superintendent. Tin! licst proof of the
inutility of such visits of inspection is tf) he found in the fact that the go\ern-
ni'jiit h is inspectors of iti own. who otHcially inspect, the puhlio institutions,
and on their reports, not on the recommendation of (Jrand Juries,
improvements are made and changes carried into (;irect."'
THE GR^ND JURY A SUPERFLUOUS COURT OF APPEAL.
The primary duty of the (irand Jury, now, is to determine whether the
magistrate who has cMnmitted a prisoner to jail on a criminal ciiarge (in the
very few cases wherein the accused has not elected to be tried at the county
jr.dge's criminal court), after healing the evidence against him, had any
justification f(ji suhjecting the prisoner to trial, in otiici' woi-ds \vhether the
committing magistrates lad or had not )u'rverted his duty and coi mitted him
upon a charge even hy y)r////'i yiic/' testimony. Thus a large hody of men is
summoned from the various parts of their county to see whetiier the commit-
ting magistrate, who is supposed to have heen appointed to his office for his
ctticiency and ability, knew his huniness, or performed, or violated his duty.
Ml'. Justice (i Wynne, of the supreme court, says on this sidiject : " The
provisions of the act formerly known as the Vexatious Indictment Act, now
embodied in section 140 of chap. 174 of the Kevised Statutes of Canada, and
tho provisions of sections (>i) to 7'^ and 80 to 82 of the same chaj). 174,
regulating the proceeilings before justices upon criminal charges, are all
fi'auied with the most anxious solicitude to pievent ])ei'sons being put upon
trial upon frivolous or unjust accusations. The.se provisions, if tiiey ai'c not
alr(!ady, can be made al)Uiidantly suHicient to dispense altogether with the
services of (Jrand Juries, whose functions are now reduced to an en(iuiry,
more ludicrous than real, whetiier the evidence up:)n whiidi the justic(!s hail,
after c-areful investigation into the ehcarges, as provided for in these sections,
committed the accused parties to jail to stand thcii' trial, was suliicieut to
warrant the jirot'ecdings taken, and to justify ihejiutting the accused i)ersons
u])on their trial. To me it has always appcareil marvellous that the ijersons
who are called upon to serve as (Irand Jurors in this country havt; eiidnrc<l,
without vigorous pi'otest, the inconvenionce to whic.-h tlu^y Iwae been subjected
in being taUeii from their business for the purpose of discharging such useless
functions ; the ])ay, however, which they receive artbrds, 1 presume, the
explanation of their forbearance."
THE LAWS DELAY.
In the event of the abolition of the (Jraiid -lury and the snb.stitution of a
public |»rosecutor it might not he amiss to consider whether thisotlicial siiould
not either make periodical visits to the ditl'crent counties in his judicial
district or else hold himself in readiness to go there on receiving an official
intimation from the sheritl'that he was reipiired, in the same manner that tho
county judges now do when jirisoners are first brought to the county jail. As
the law now is, any person committed to jail who refuses to be trieil at the
county judge's criminal court, and who at the same time may be unalile to
furnish bail, and who may Ik^ entirely iniioceiit, is obliged to languish in the
common jail pending the holding of a court, which may not be hell for live or
six nniiths Surely the jurisprudence of the age should l>e cipial to the task
of preventing the possibility of »o llagraiit a wrong. Simple justice demands
71
that tluTf ouglit to l)t' Mouic triluiiiiil wliicli could at oiicc, f)Z' witliin a reason-
\l)ltj time, iiivi'.stiyatu sudi cases and prevent as lar as |)()SKil)le tlic law's
intolcrul>l<! delay in the case of men whose innocence may he estahlished l>y a
preliminary incjuiiy.
The same reason \\hicii now prevents such an in(|Miiy, viz., the great
inconvenience of snnmKJiiing a huge liody of husy men from their occupations,
except at lonsiderahle intervals of time, would not ohtain under any of the
new modes which have lieen suggested.
THE ABSENCE OF THE RIGHT OF CHALLENGE.
When an accused p rs m iippcai.s liefore a Petit .lury he is entitled to this
valualile right of challenge, lie is hi ought face to face with the jurymen who
are to lie his judges. He can, according to the nature of the charge, challenge
peremptorily a certain Tiumher of jurois, iind also challenge! for cause «'/ llhitiiin
aflei' his right to clia
icnge pcrcmjitorily has iiecomc exhau.sted.
I'.cfore the (Irand .lury, on the other hand, he is not allowed to appear at
all, nor has he the right to be represented hy counsel, to guard his interests,
to cross-examine witnesses, or challenge, jx.'ssilily for good cause, a single
juryman. As an integral ]);ut of the secret tiihunal, whicli is to pass upon
his guilt or innocence, there niay he enemies of an iiniocent man, per.sons who
hold iind have exjircssed strong o])inions on the cute in hand, men who will
do their Lest, under the guise of justice, hut in a covert and unsuspected way,
hy the adroit examir.ation of witnesses ind in a secndngly ingenious, hut at
tl
or
he same time, cunning mannei', to cause their fellows to l)ring in a true hfll ;
r there may he personal, political oi- religious syuipatliizers of a guilty man
,.pon the jury, even relatives or close connections or persons who have a
pecuniary interest in the matter to he dealt with, who will urge every jjossihle
pica in a similarly coveit hut ostentatiously open manner to ignoieahill.
Such persons, eveiy one will admit, ( iight not to have a place on the (irand
.Jury, hut wlio is to say them nay or penetrate their disguise '! ( ertainly not,
in the Hi-st-named ease, the absent victim or his friends or counsel. Whether
the Orat'd .Jury is to exist henceforth or not this llagrant injustice, born of
ancient necessities, should not be tolerated in tiiis free country any longer.
THE MODUS OPHRANDI IN THE GRAND JURY ROOM.
" While words cf li!arnc(l leiiytli and tliiind'riiig sound
Ania/ed the gazing rustics 'ranged around."
Tlie Canada Law Journal, of January, 1891, contains a long and al)lo
article dealing, among other things, with the procet dings which may naturally
lie exj)ei:ted to take j)!acc in the (irand Jury room at an assi/e or sittings of
the general sessions of the ])eace. The above branch of the subject is so
fiirinbjy, and yet so fairly ]iut, that I copy it entire as a conti ibution to what
has already been said in othci' jjaits of this review f)n this point. The Journal
says . " What is the practical experience in regard to the system 'i We have
no hesitation in alleging that there are very few (irand Jures that will not
lind a bill at the instance of the crown prosecutor, and tliere are fewer still
who will not ignore a bill on the intimation of the court in charging the
(ii'aiid Incpiest. This is natural. 1'he jurors are j)rin(U|)ally farmers, with
occasionally one or two business n.en on the j)anel. They imj)licitly allow
those skilled in the law to guide them, when they thiuk it })roper to nuikc
emiuiries on legal nuitters. They ask (piestions, the answers to which
mateiially influence their judgment. Hut they are not bound to seek for any
information, and a fiiend of the accused on the panel, with a little shrewd-
ness, a little manipulation, niay readily succeed in ha\ing a l)ill thi'own out
whicii ougiit to l)e presented. Tiie evidence nuvy be ingeniously extracted
one way or tiie other, as the exan)iner is friendly or hostile to the prisoner.
There is no limit set upon the mode of conducting a prosecution in the (Jrand
Jury room. No evidence is allowed to be disclosed outside its sacred
precincts. The mahix opcraiu/i remains as if it were a confessional secret.
'I'lie very oatli taken by tlie jurors protects them, as they are in effect sworn
to keej) secret what transpires within their chamber. Only one witness is
allowed to be ))rescnt at one time. There is no record made of the evidence
given. It is true tluit witnesses are sworn by the forenum ; but if the witness
swear to what is untrue, his perjury is practically })rotected and safely
guarded by the veneration which the law has for the system wiiicii we are
op])osing. It is true that if a man swore to a fact in the (Jrand Jnry room
an ( directly opposite in the witness box an hour afterward there is a way of
prosecuting him, but it would l)e so beset with legal points and hoary headed
oljjections that a conviction would be almost impo.ssible. Hills are presented
to the (hand Jury on the last day of their session The jurors are anxious
to retui'u to th'Mr lion es. It is ditlicult to kee]) them togetlier when their
sitting is prolonged, They are to a gteat extent an independent body. What
is tile result"; A hurried examination of a witness or two, not one-fourth of
the facts elicited, a suggestion l)y an impatient '" good and true man " that
anotlierday will be lost unless the business can be finished at once, a linding
of the bill, and some unfortunate individual is subjected to the caprice of
" the strong god, circumstance," ])ut upon his trial, mulcted in heavy counsel
fees for his defence, and acijuitted very often before the Crown has com])leted
its case! Surely these are matters which ought to weigh heavily in considering
tlie advisability of retaining this adjunct to our criminal procedure. A grave
objection to the system is undoubtedly that the jury is a secret tribunal. The
proceedings are, as is well known, not only conducted in private, but the
privacy is sanctioned and bound by an oath which each juror takes after the
foreman has been sworn. No (piestion can be raised as to the sufKciency of
evidence, or whether there is any evidence at all against the accused. All
other findings of every court ov functionary can be reversed if there is no
evidence to support them. The (irand liupiest alone stands in this respect
mm
73
uiii((ue aiidheyoiid tlie reach of tlio law, and ooL-npie.^ t lit' lii^di position of
being an.s wcM'ai)lo to no |)o\vcr, no couit, and no parlianu-nt of liio Matt'. Its
mistakuH eannot la; luctilicd. 'I'la' atiida\it.s or .statements of (i rand .Inror.s
are not, as a I'ulo, allowalilo to correct tiie sinipii'st error or remedy tliu
gravest miscarriage of justice, and the court tiuit tries tliu case cannot assist
by way of amendment, exce])t in matters of mere form. '1 lie jirhiia /'(tcie
evidence of a man's guilt is weighed by laymen in secret conclave, the
examinations are conducted HO one knows how, an<l t lie tinding is ari'ived at
almost necessarily on facts uliich are only a small part of the truth, and all
this with' lit the assistance of the court or counsel, because the gcncial
directions given by the court, useful as they must always be, manifestly fall
slioi't of any {U'actical service in hearing and considering the eviilence in detail.
Tliert^ is no jiublie sitting in judgment on their actions, 'i'liat guaidiim of
l)rivate rights and public interests the press -is heljiless. There is no tierce
" white light " to terrify and hold in check any juror comcriied in wron. -
doing. All the restrictions and safeguanis w liich tiie law has thrown aioiind
criminal juoseciit ions are wanting. And worse, jieihaps, than all, a man may
be juit in peril of his life upon hearsay testimony, the mere rumors of the
neighborhood, the idle gossij) of his friends, or the vindictive insinu ilions of
his enemies, tor no wis(! judicial hand is raised to jirevent the admission of
this e\idenc(!, which the law says shall not be evidence at all. The accused is
not allowed to be represented. That a i)erson charged with an oll'ence shall
have the ln'iielit of counsel is one of the fundamental priiutiples of our modt'iii
jM'acti -c. A ])rcliminary examination before a magistrate may be, it is true,
a secret enipiiry, and is such in theory. Hut what magisli'ate would dare to
exclude a prisoner's counsel'^ And even if he did, the accused is himself
present, and may ask such questions as he thinks proper, (jiiestions wiiich
often tend to throw a very ditlerent light on the evidence already given. The
result i.s that the tinding of a magistrate is really a far greater ])rotection to
the public and the accused than are the [)rocecdings befoi'e a (iraiul dury. The
magisti'ate is generally a man having more or less experience in dealing with
criminal cases, and in this respect has a great advantage o\er the jurors. His
committals often end in acipiittals, but at least there is something apparent
on which they are based. We have only to look at the cases which are
])ieseiited to the court at the Toronto sittings of Oyer and Terminer to see
liow little ground there could have been in many cases for finding a bill. Case
after case lias been thrown out by the trial judge before it reached the petit
jury, and men have been put ui)on their trial and have undergone the humilia-
tion of being placed in the dock as felons, without the slightest particle of
legal evidence against them. In fact, we doubt if a single ease can be named
where a ( Jrand .Jury has protected either the interests of the Crown or the
legal rights of a person by its finding ; and further, we do not believe that
there is any instance where a better result has been accomplislnMl by reason of
the intervention of a (h-and Jury than would have been gaiiieil by the
magisterial enquiry alone."
Add to the above the fact that those cf)mposing the (Jrand Jury are not
men of judicial experience, or accustomed to the examination of witnesses, or
the investigation of facts, It is (|uite possible for an unwilling or partial
witness appearing before a number of unskilled laymen, to supjiress important
facts, and to color statements so as to avert a ti'ial, or to coniii\e with the
accused or his friends, and thus to cause injustice to be dfuje. The possibility
also of mistakes without corrupt nu)tives, is of frccjuent occurrence, much
more so than would be the case were the investigation in the hands of a
trained legal mind .
Again, the (irand Jury is a changing body. A juryman at an assize or
sessions may never meet more than one or two of the same men at any
subsequent court in a whole lifetime.
I
Wf liinc iiMiiif litci.'itinc " 'l'iil( H ol tlic .liny rnoin," It is iiccdIcHM t<>
Hiiy tliiil, fur (ilixiiiiis iciiMiiis, tlit.sc arc imt t.ilcs of llic (iiaiid •Iiiiy ruoin.
OocaHiuiially. liowt'S fr, uiii; lieacs soiiielliiri;,' of llu' iirouoeiliiigH in tliiitaocrct
ami pi'ofonnil L'lwunlii'.r.
Only two of tlioMu can I at tliis nionicnt recall. ( »n one occasion tlio
Jnidis NM'ic an nnnsiially nicdiocrc ami dull lot of I lie lionc and sini^w. 'I'licy
had clioscn as their foreman a merchant, wh(» was corrsidcr'cd one of the
hriuditcst lights. 'I'liis f^eiitleman, in adrnirdstering the oath t<t the witnesses,
in the most sohtinn and ore roliuido manner', always eonclrided that |(i'oceod-
irig witli tlm words, "So help jioar (lod I" in the alrsoliile, iind appiiiiintly
unchallenged lielii'f, that he was indeed a model foieniair.
At arrothei' time a conscii'ntions iirrd rerrrarUalily silerrt- Scot, unwilling to
.dlow his light to shine f-ntirely umU-r' a Inrsiiel, propounded to each wilneis
ihe(|uery. " ^^ hat is your- oecirpalion ';'" and appi^arcd perfectly satisfied lie
had done his wlioh^ duty to man wlnoi tiie (|iicstion was answei'e I. It was
noticed also that if the witness was a faiuier, the juryman was more than
Usually alert and at tent i\e, hut said no nioii', and that he pii 1 hut sliglit
attention to thi! testimony of anylioily who followed imy ollu'r calling
Ah latodixre imuKs.
And, to tliinU of it, this is t ho system which j)f)asessea such womli'ifiil
educational advantages 1 a mode of trial wliicji, l)orii " in tin; dim vister of
the jiast '" (as ,\rtenius W'ai'd would lia\e said) has survived the decline and
fall of empires and the collapse and disiiitegraticm of kingdoms ; a system
whicli, tloiu'isliiiii,' before Hastings was fought and won, hefoie lUenheim,
( >ud(,' ai'de and Malplaijuet gave to Marlhorough and to Miigland ini|)erislial)le
reno.iii, has yet in siieli a lemirkfilile nianner I'esisttid, to tiiis day, the
ini|)ro\ing hand of the jurist, the li'gislaloi' and the law-reformer.
1 will not ehai'ge to the (iraiid dni'y, or hold tiiem icsponsihie for the
hap|)eniiig of, the following I'ather laughable incident wliicli 1 can personally
voiicii for as having occurred in a county town not more than three Iinndrod
miles from the city of Toronto some years ago, As, liowexei', it could not
hav(! taken jihice hail there been no (Iraml diiry, it may not be (•onsidered
unfair' to relate it as it is .somewhat f/'Ti/ c to the subject in hand.
On the occasion of the first visit of the late Chief .)usli(!e Harrison to the
county town referred to the (irand dury had duly selected theii' foreniaii,
and hail also l)een regularly swoi'u. The crier' of the court, clad in his oHicial
I'olie of otiice then solcniiily arose, and, in a voice which could be distinctly
heard in evci'y par't of the. lar'ge court room, made tiie follinving astounding
])iocIaiiiation : '• () yes I yes 1 I yes I I I All manner of persons are
strictly enjoined to preserve silence while his Loi'dsliip the chief justice
delivers his charge to tiie Oi'and' .lui'y. On pain of -death I" Had a
dynamite bomb suddenly appeared coming through tlii! ceiling it could
scarcely have creatc^d greater' surpi'ise for' the moment, l)iit. wlu'ii people
could catch theii' l)reath, suipr'ise gave place to laughter', long and lond,
which the hiiili bailiirand his constables (not coiuiting the discomlited cr'iei',
who was of cour'sc hors-de-conihut,) had considerable dithciilty in (juelling.
His Loi'dsliip. when quietness was restoie;!, tuined to the sheritl", who was
seated at his siih;, and ipiietly remarked, while amusement twinkled in his
merry eyes, " Mr. Sheritl', your penalties ar'e r'atlier severe ; don't yon think
so V' to which the slieriir as merrily assented. \Vh(?tlier the befogged crier
was f>vercoiiie with the extra imp irtancc; attaching to his position in
consei|iience of having a real live chief just ice to pi-eservc orihu' for, or had
been reading up some idil book of forms containing proclamat ions, and had
got nii.xed, I will not say.
THE SECRET AND IRRESPONSIBLE CHARACTER OF THE
GRAND JURY.
A vofy Hf'i'iniis olijt'ctioii ((I till' syMliMii, ami oiiu of tlic wof.st fi'iiiiirrH
alnut il, is its si'rict luid practii'iilly ii rfS|H)iisil>l(! I'lniiiu'ti-i', I'vi'iy iiioinl<ci'
of tlio Ixidy ln'iiii; swoni to serri^fy i)ufof(! In; is iiiliiiil t('<l to act. Tiu! beHt
jiiiaiaiitci! of ci\il, lil)C'rty "tlic opiMi ailiiiiiii'st ration of ju.stifo is wanting,
and piil>lieity, — tlic very osscncc of ooutiWuncu in jiulii'ial procoudiiiys, tlic
greatest security for good condiirt, -is strictly guarded against.
A secret trilnmal of this kind, where a majority decides, is practically
ir'i'es|)onsil)le, aiid may Ix? made to .serve as a hlock to a |H'opc!r prosecution, a
screen for an otl'emliir who has l);;cn sent nii for trial hy a magistrate after a:i
o|)un en(|iiiry.
Again, tiie crown <'onnsel has access to the (iran<l dnry, and here crops
u]) another olijeclion to that l)o(ly hiding a secret (uie ; this gentleman has
nei'essarily great intluencu with the (Jrand -lury, and fre(|n(Mitly conli'oLs their
actions. At tiu; same time he is not personally rcsp msildc, nor is he
amenal)le to piililic opinion.
l'ossil)ly, lu! may not intend t ) act at all imjiropci'Iy, hut " iritlis liglitas
air" to him i I'e toitiiriMl hy tlu' un.'-killed jurymen into " conlirmation strong
as pi()<ifs of lioly writ." A few words from a gentleman snpjxised to "know
th<! law "' ai-c (piite sufficient to cause the jury to decide in favor of that
leained gentleman's view, who thus practically (le(;ides the case Avithf)Ut
shouldering the responsiliility.
His Honor .hidge Hugiics says on the suhject of .si!crc(;y and eml)racei'y :
'• I know for a fact that oftentimes the (Jrand Jury has been composed of
men, who, regardless of the solemn obligations of the oath they have taken,
have allowed themselves to l)e a]iproached and talked to on the subjects to be
laid before them and otlieis on the (Jrancl •hwy ; that the enjoined seci'ecy of
the (ii'iuid .Inry room has been oftentimes \iolated. 1 may say times and ways
witliout number, and that even at the \ei'3' thi'e>hold, and wit liin tlic prccinct.s
of the ( i rand Jury room itself, men of |)osition have l)een known to intrude
themselves, intercede with and addiess the (Ji'and Jury in order to prevent a
presentment of matters which should and would have lieen made subjects of
presentment Imt for the l)utlon-iioling and imi)ortunity amounting to nothing
short of eml>racciy."
In a ease which came iiefore Mi'. .Justice lUirton at Cornwall somi' time
ago, he referred to the fact that scarcely any gi'eatcr conttnnpt could be
offered to a coui't of justice than tam))ering M'itli a jury. He was thereupon
assured by one of the learned counsel l)cfoi'e him, that scarcely anytiiing was
moi'e common. In I'ases of this rliaraclei' it is of course \ei'y d tiicult to get
at the bottom, as great cart' is taken to cover up anj' tracks The ti-mlency
of recent legislation has been to take the tri^l of otl'ences out of the hands of
juries and put it in tiie liands of judges, with l)enelicial results. Juilges area
great deal more likely to be unsympathetic than jurymen, ami vre eertaiidy
less likely tf) be got at. Nobody ever hears of cori'upl practices being made
to a judge, at least not in Canada.
Ill
AS A CONSEQUENCE OF THE ABOLITION OF THE GRAND
JURY, THE PETIT JURY WOULD BE IMMENSELY
IMPROVED, INTELLECTUALLY.
"A gooil, contciilcil, welllircjikfiistfil jiii'viiian is ;i cnpit.-il tiling to gel liolil of.
or hungry jiir) men ,-ilways I'liul for (lie plaiiitilT, DiiKi'.NS.
I)i>cuiitciitcil
•Iiulj^o F. Miller, one of tlio nine jinlgcH of the supreme court of the
I'liitcid Statt'H, ill nil iihle ai'ticic wiiicli aiipoaieil in tlie A iiifiinni Lmr /,'iriew
for .liinuiiry, ISMS, .says tliat lirfori^ lii.s i'lr\a1i()ii to \\\^^ hciK'ii, tin; iiii|»re.H,sion
on lii.s iniiiil wan, lliat in civil .siiit.s petit jiiiicss wci'o of douiitfiil valuo At
that time lu; wou'.il iia\t' prcfcrrcil a coiirt I'ompo.Hcd of tluoi- or more jiidgoH
(to selected from dill'ereiit parts of tlie circuit as to prevent any jirccoiux'ited
action or agreement of interest or o|)inionj to decide all (iiiestions of luw or
fact. He now thinks, however, that this preference was largely owing to the
popular and frc(|iient election of tiie judges of tiie court in which he was
practising and to tlieir insiitrK'ii;nt salaritss. They were neither v«!ry
competent as to tiieir learning, nor secure in their |)ositions 'I'licy c'oidd not,
tiicrcfore, exerinse that I'ontrol over tlie proceedings, in a jury case, and
especially in instructing tlu! jury upon the law applicahle to it, wiiii'ii is
essential to a right result in a jury trial. A case left to the unregulated dis-
cretion of a jury, without that careful discrimination between matters of fact
and matter.s (if law which it is the duty of tiie court tf) lay liefore them, is
lit tie more than a |)i>piiliii' trial ht^fore a town meeting. The judge should
cleai ly and decisively state tiie law, wliicii is his |)roviiice, mid with e(|ual
precision point out to tlie jury the disputed (jiiestions of tact wiiich it is their
duty to decide."
Tiicse remarks of the leai'iied judgt! are uiidouhtcdly sound. 1 hey
c unmend themselves to one's understanding, and as tlu^y are hased on a
atite of tilings, the very aiitipotles of tiiose upon wliich Mr. Justice .Stareleigli
proceeded in iiis famous charge in the great case of BardcU vs. I'ickwick, 1 am
tempted to ((Hole the latter entire in order to contrast the two .systems. Mr.
.Iiistice Stareleigli (as most people know, this learned judge was really Mr.
.Iiistice (iasidee) " suiiimed uj) in the old estahlisheil and most approved
form." He ri'ad as niiuli of his notes to the jury as he could decijiher on so
short a notice, and made running comments on the evidence as he went along.
If Mrs. Ilardell were I'ight, it was perfectly clear that Mr Pickwick was
wrong, and if they thought the evidence of iNlrs Cluppins worthy of credence
they would lu'lievt^ it, if they didn't, why, they wouldn't. If they were
satisfied that a lueach of |)romis(! of marriage liiid heen committed, they
would tiiid for tiic itlaiiititl' w itii siu li damages as tliey thought proper ; and
if, on the otiicr hand, it a)»|)earcd to tiiein that no promise of marriage had
cvOr been given, they would tiiul for the defcmlint with no damages at all."
'i\) the credit of the bench, be it said, that this style of charge to a jury is
now obsolete.
Judge Miller, above mentioned, further says that an experience of
twenty-five years on the bench had convinced him that when the
iiriiiciples already stated by him as above, are faitlifully applied, a jury is
in ihc iiia'n as valuable as an e(pial numlier of judges would be, or any less
number. His experience in the conferences of iho United vStates sii^ireme
court is that the nine judges come to an agreement very readily u|)on
(piestions of law, while they often disagree in regard to (piestifins of fact
wiiich arc as clear as the law. His ci nclusion is that judges are not pre-
//
eminently <itto ', over otlier incn (if j^riod jiKjginoiit on Idisinosa iilTairM, to
decide ii|mmi mere (jiu^slioMM of ilis|)Ute<l fiiot.
Now, I tiiink tidrt em|iliasi/e.s tiie point wiiiih I iiavu elHewliine in tiiia
review endeavored to miike, viz., tiiiit liy iilxilinliing tlie (tran<l Jury a. largo
numhor of nuire intelligent men would be rendeie*! available! foi' Hervice on
wlial would then lieeome tiik jury, and tlieae men being mort^ intelligent than
the oi'dinary petit jurymen would be more likely tlwin tlu'y to arrive at a
proper vi'rdict. They aie not reijU'red where they now lire, and they are
badly needed in the 8|ihere to which tht^y wouhl be removed, wliic-li would
thus become, undoubtedly, improved by their prexenee. 'I"he poorer nuiterial
wouhl be eliminateil and left at home, and all those who would have been
otherwise on the (Irand dury would be summoned in their stead.
Again, the invidious distinction between the grand and jietit jurj', which
now prevails, would be swept away, the jury would vastly increase in respeet-
ability, and it would no longer be considered almost a reproach to be drafted
to serve in a position which should certainly be considered a most honorable
and rt^sponsiblc one.
In a iliscussion of the (irand dury system it will, |)erhiiiis, lu; cousideri'd
out of jilace to refer to the pi-oceedings of the petit jury, but 1 think that iis i
may anticipate events a little and be c<insi(Iei'e<l as addressing myself to the
new oi'der of things after the " improved " jui'y shall have come into existence,
it will not be impro|)cr to say that in civil eases the rule that there must be
entire unanimity, undoubtedly works great injustice to suitoi's. These cases
are decide(l by the preponderance of evidence and upon the balancing fif the
weight cif testiniouy. With a much more intcdligent jury created by tiie m^w
state of ailairs, why would it not lie safe to do away with the ancient rule
requiting the wIioUj twelve to agree ujxm a verdict '! Why would not nine or
ten be sutficient t(i concur? As it is now, one or two obstinate, partial,
ititerested or ignoratit men may and often do eHectually block and make
abortive a costly trial.
Oti a certain occasion a jitry had been utiable to agree, and after being
sent back once or twice they were asked by the judge what thedilKcnilty was,
whereupon one of their number, an elderly tiian, replied : " My lord, it is
im|)ossil)le for us to agree ; these rlevm men are so obstinate that they won't
listen to reason ! '" It is not recorile(l whether or not the judge took tlie jury
with him to the next assize town iti the historical cart in order that the c/even
ohsliiia'e men might have an opportntiity of seeing the error of their ways.
Criminal cases, of course, stand upon a difTerent footing. Here, unanimity
should be, as it is, re(|uired. In these cases it is tiot a matter of prepoiuler-
ance of evideiKu-, but. of reisonable certainty. 'Ihe old rule shouhl therefore
be observeil, that it is better that nine guilty men should escape than that one
innocent person shouhl be found guilty.
To return to the (!i and ■Jury prop(!r : it is a well ascertained fact that
they are very ajit to overstep tliiiir province and to assume to try cases,
instead of eontining tiiemselves to the simple (juestion whether a prim% facie
case has been made out or not. Placing them on the jury would give them
amjile scope to indulge their ambition in this respect, and to hear both sides,
and thus this objection would thenceforth cease to have any weight.
In my study of this subject I have only come across one writer who
belittles the intelligence of the (Jraud •Jury at the expense of their brethren of
the other jury. This writer says : " .Strange as it may seem the class of men
on Grand .luries in Otitario are, as a rule, inferior even to tho.se on the petit
juries." Now, I think this writer has overlooke I two things viz., first, that
the statute clearly contemplates the selection of a more substantial and a more
intelligent body of men to serve on the former than on the latter, and,
second, that as a matter of fact that form of selection is actually always
made, In nominating th^ different boards of selectors the statute has chosen
78
iiitjii wIk) from their pcoiniiiont position and knowledg ; of the locality arc the
most likely to he cognizant of the (inalitications of tha respective bodies of
jurymen. I know thi.s has been my own personal experience as a cour.ty
sele'.'tor for aniimber of j'ears; and as a practising barrister' for twenty five
years -ly ol servation of the men on the different panels as tliey have appeared
in the jury box, convinces me that invariably the more capable men in eveiy
way will be found on the (Jrand Uiry, such as magistrates, county and town-
ship councillors, city aldermen, physicians, merchants, manufacturers, etc.,
etc. The learned writer referred to is therefore either not sufficiently
ac(piainted with the pfr> o line I t^f tlie respective jurymen, or Ihe selector.s in
the locality for which he speaks must either be very lemiss in their duties or
ignorant of matters about which the law reijuires them to have some
knowledge. In either case it does not affect the general experience of those
observers of the subject in hand.
THE GRAND JURY ALMOST SUPERCEDED BY THF.
PASSING OF THE PETTY TRESPASS AND SPEEDY
TRIALS ACTS, ETC.
About sixty years ago tin; proposal to try certain (iffences Ijy tlie
iiitioductioii of wliat was called, " The Petty Trespass Act," aroused a very
strong and stormy current of remonstrance, as l)eing an invasion of the liberty
of the subject, because it sought to deprive men of their constitutional right
of trial liy jury, and to confide too much power to the hands of the nuigistracy.
'i'he example was, however, set by the hnperial Parliament, and the wisdom
of it was proved by the reailiness of its administration, its economy, and the
speedy iiisposal of a class ot cases which had incuml)ered the courts and
flooded tiiem with cases of trifling consequence to the delay and prejudice
of important matters.
After the discussion at the diffeient elections, and pointed allusion to the
subject being made in tlie publisiied addresses of j)arliamentary candidates
soli(.'iting support botli pro and con, the right of trial by jui'y was, by legis-
lative ennctment, seriously curtailed in cases in which complainants might pray
the magistrate to proceed summarily, but a defendant had a right ot appeal
against an adverse decision, notwitlistanding, under certain conditions. In
all these cases whilst the right of trial by a petit jury was preserved the
functions of the (^rand .Jury wtivn dispensed with.
Wiio can count the nuinljcr of acts of ])arliament which have been since
passed from time to time, botii by the imperial and colonial parliaments, in
the same line, whereby this " palladium" of tlie libeities of the subject in
the matter of tlie intervention of the (Jrand Jury has i)een dispensetl with,
and the right of t ial by jury altogether al)rogated. The climax as regards
app'.als against the sunnnary jurisdiction ol magistrates has surely l)een
reached when the Dominican I'arliament and tlie Local Legislature of (Jntario
have passed acts altogether dispensing vvith botli the grand and petit jury.
Where is the complaint existing against it V What h is become of the cry,
*• It is better to leave well enough alone," which met the propasal of sixty
years ago ?
The Speedy Tiials Act, alluded to elsewhere, was passed in 1861) on the
introduction of the late Honorable Jcbn Sandlield Mactlonald, then allorney-
geneial for Ontario, in Lis place in the Dominion parliament . [He evidently
did not think the latter was acting ulfra rirt's.] Ami althougli the trial by
jury was ])reserved to a j)erson accused of crime which involveil the necessity
of an indictment by a (Jrand Jury ami a trial by a petit jury, it is the fact
that the vast majority of cases were summarily dealt with by the county
juilge. Hy subsequent legislation tijis right was extended, giving a like
jurisdiction to police magistrates, siiic^ which last change most of the cases
are dis]>osed of at the police court. Where is this complaint of? Has
injustice been done ? Have not all reasonable doubts arising on the trials of
cases urdei' this nonjury .system been considered and given efl'ect to in favor
of the accused by the judge or police magistrate in the same manner and to the
sameextent as a jury would or ought in all reason have done?
Whilst the system undei- the Specid^y Trials Act was new, it was the hal)it
of son)e lawyers in defending prisoners to advise their clients to demand a
trial by jury. It was soon fountl, however, that as fair a trial anil as
satisfactory results followed an election to be tried without a jur}', as might
be expected from the latter, and so the rule now is, for a jierson accused,
who has been biought within the provisions of the act, to elect to be tried by
the judge, and the exception is for him to demand a trial by jury.
m
HINDRANCES TO THE EFFECTIVE WORKING OF THE
•DECENT ONTARIO ACT REDUCING THE NUMBER
OF GRAND JURORS.
Besides the practical liiudrances wliich would prevent the enforcing of tlie
recent Ontario Act, to say nothing of the constitutional objections alluded to
elsewheie, there is the want of provision for contingencies wliicli are not only
])ossil)le, but obvious and pi'obable. It was always an anomaly m the
provincial legislation of Ontario that the courts should issue their ])rocepts tor
tl)e sunnnoning of twenty. four Grand Jurors, when it was required that the
(Jrand Jury must consist of twelve at least, and might contain any greater
number, not exceading twenty-three, in order that twelve ndglit form a
maj(nity of the jurors.
On one occasion one of the chief justices of the Queen's bencli division in
Ontario, presiding at the assizes, finding that twenty-four Grand Jurors
answered to their names i-ebukcd the sheriff for summoning inore than
twenty. three persons, (pioting Chitty's Criminal Law to tlie otticial. Ihe
sheiiff meekly appeased the judicial but injudicious and forgetful fault-hnder
by siiewing him the precept issued by the judges (signed and sealed by him-
•self ) commanding the sheriff (upon certain ])ains and penalties) not to fail ol
summoning twenty-four (4 rand Jurors for the occasion.
Tlierc must be twelve at least because the concurrence of that number is
absolutely necessary in order to put the accused person on his trial, and thee
must not" be more than twenty-tliree, because otherwise there might Ik; an
e(inal division and thus two full juries, who might differ in opinion, but if the
recent act should become law and the (iiand ,hvy system be retained it will
be found much more difhcult to find twelve men to agree amongst thirteen
than amongst twenty-three, as heretofore. Tiiere must be twelve to hnd a
true bill or twelve to ignore a bill, and it is qi ite jjiobable that amongst the
kind of men wlio sometimes get pla.ed upon tlie (Jrand Jury it would be
found impossible to find twelve out of thirteen to agree to eit'-.er the one or
the other, and a "dead lock ^' would be the consequence unless provision was
made for' a majority ruling in either event. If that were to be once
established then the principle of a man being presented for crime on the oaths
of the ancient number '• twelve at least of his peers " would necessarily fall to
the ground.
THE OBJECTIONS TO THE GRAND JURY SYSTEM.
On the occasion of King Iani<;s once making a Royal progress throngh Kngland he »vas met
outside the town gates dl a certain borough by the mayor and aldermen. The mayor, on
approachn.g the king, hnml ly apologised to His Majesty for r.ct havnig had ihe bells
rung as he neared ihe place, sating there were seven leasons for ihe appaienl slight.
In the hist place, my liege," lie said, '"we have no bells." Ihe king thereupon was
graciously pleased to remark that that rtason was quite sufficient and that he nee<it:u'
state the others.
As gleancfl from difteient soiirees the objection.s to tlie (Jnnid ,11117 system
may slioftly be stated as ft)llo\vs :
1. It is enormously expensive.
'2. better material would be rendered available to serve on the petit
]ury.
3. At times unnecessary and vexatious delay is caused.
4. It is exposed to outside influences.
"). It is unskilled in tiie e nination of witnesses.
(i. Coiitiary to the spirit of tiie age, it is a secret tribunal, and
experience teaches, that a secret body can easily screen an oflender. Its very
secrecy is an invitation to covert appioach.
7. As at present constituted property qualification is a piinie necessity
and this is a poor guarantee of eitlier good sense, honesty or intelligence.
8. It can be made the instrument of oppression.
9. Prejudice ar \ not justice may jnevail at its hands.
10. There is th constantly recurring danger of sei ious miscarri^ige of
justice through mistakes in procedure, or tiie incapacity of unaccustomed
jurymen to determine the value of evidence, or what is evidence.
1 1. No right of challenge can be had like that in a petit jury.
V2 Friends or foes of a prisoner may be placed on the jury.
13. No rules of evidence govern.
14. It is very easy for a partial or unwilling witness to suppress or color
his evidence in the secret examination,
1"). It is a constantly changing l)ody.
1(). Social and political considerations often control jurors' minds and
cause partial justice.
17. Each jury is swayed by one or two of the most clever or most
aggressive of its members.
18. It is an anomalous and circumlocuting tribunal.
19. It has little or no weight in the community, ami county councils,
judges and governments practically ignore its representations anil
recommemlations.
20. It gives criminals too many chances to escape and does not protect
tiie innocent to a greater extent than could be done by a more inexpensive and
less cumbersome tribunal.
21. The prejudices of local jurors may prevail against evidence.
22. Not the Urand Jury, but the petit jury, constitute, under the
directitm of our independent Canadian judiciary, tie true nrotection of the
subject against unjust or frivolous prosecution.
82
23. Its aljolition would relieve a large number of the most substantial
men of eacli county from the perforniaiue of an onerous iluty ,uul burden cast
upon tliem, frefjuently at most inconvenient seasons.
24. It has not a single attribute with which a public criminal prosecutor
could not be inoie advantageou.slj' clothed.
25. 'I'he apjjointment of pi-ovincial inspectors makes its supervision of
jails, houses of refuge and asylums uiniecessary. This bianch of its functions
was at all times valueless, as jailers and keepers always had ample notice of
its visits and could govern themselves accordingly.
20. Possible injustice may ai'erne from the one-sided free access of the
crown counsel, ami an unscrupulous man cjuld covertly wield immense
intiuence to suit his views.
27. It is only potent to help a criminal by shielding him from a searching
examination in open court where the public ear is ready to detect and the
j)ublic tongue to censure everything savoring of partiality or injustice,
28. At (<ne time it was necessary in the absence of police in bringing
offenders to justice, but that reason is now eifcte.
20. Its inherent power of indictment and exercise of presentment could
be effectually transferred to a public criminal prosecutor.
;}(). The h)iig term of imprisonment of possibly innocent persons, unable
to procui'e bail in the interval between a committal by a magistrate and tlic
meeting of the (iiand .lury, may in the interests of humanity, be urgeil as a
very good reason for its abolishment.
31. It has been charged that even the church and the lodge are sometimes
made use of iii the interest of an accused person.
32. It would long since have been a thing of the past if its decisions were
in any sense final or conclusive against an accused person.
:VA. The tendency of the (irand Jury to usurp the functions of the petit
jury irnd actually try the case instead of contining themselves to the simple
question \^hethev n. jirivia/'icie case had been made out, and ignoring the
directions of the court is another very serious objection to the system.
34. The extended jurisdiction given to county judges and police
magistrates has reduced the labors of (Jraud Jurors to a mininuim, and
accused pei sons declining to be tried before these tribunals do so because they
desire to be tried by a petit jury.
There can be no question that this is a formidable array of reasons in favor
ofabolitjon. I venture to say that some of them are new to many who aie
opposed to a change. I think none of them are frivolous or overstated.
THE POWER OF THE PRESS.
"If there's a hole in a' your coats,
I rede ye tent it,
A chirld's among ye takin' notes.
And, faiih, he II prent it."
- Bl'Rns,
Speaking of the power of the press, tlie Honorable Mr. Laurier, the
leader of Her Majesty's Opposition in tlie House of Commons, when addressing
himself to the question of tlie abolition of the (irand Jui-y is reported in
//a».sa7Y/ of April 12, 189'2, co have said, among other things, "In an earlier
period of history the function of the (irand Jury was to res-iew the state of
affairs in any county and point out any abuses that existed. This function is
now largely performed liy the press of the country. "
As showing that the press has not been remiss in its duty in pointing out
an abuse in this respect, the following is a partial list of newspapers,
Conservative and Reform, which, \\ithin the last few years, have had vigorous
editorials advocating the abolition of the system in Canada :
Montreal Herald
Toronto Mail
Toronto Empire
Toronto Telegram
Toronto Week
Toronto Bystander
Hamilton Banner
London Free Press
Halifax Morning Herald
Ottawa Citi/en
Ottawa Evening Journal
New York Tinies
Detroit Free Press
Law Journal
.Scottish American
Vancouver News
Vancouver World
Dundas True Banner
Barrie Advance
Bairie Journal
Barrie Gazette
Barrie Examiner
Orillia Times
Orillia Packet
Collingwood Enterprise
Chatham Planet
Penetangiushenc Herald
St . Thomas Times
Si. Thomas Journal
About three years ago, His Honor Judge MaJtlougall, of 'i'oronto, is
re[)(irted to have said, in an address to a Grand Jury, " If the people accept
the^iews of the newspapers on tlie subject of Grand Juries they are apt to be
misled, as most of the newspapers treat the matter from a partisan
standpoint."
Even assuming that tliis was true at the time His Honor made the
remark, 1 think it scarcely can be said to be so now, bec-iuse in tiie above list
will l)e found journals from l)oth sides of politics, wliich goes to show that the
feeling in favor of abolition must be spreading.
His Honor can scarcely charge the bench witli being pirtisaii, and yet he
will find a very large majority of his brethren of the county court in favor of
doing away with the system.
For many years the Ctninda Lnir Jonnial, one of the best legal })eriodicals
in Av.iorica, has had able editorials on the subject of the abrogation of the
(Jriind Jury system.
It will be noticed that I have taken the liberty in the course of this
review to take extracts from some of these editorials. In the issue of that
journal for January last there appeared the following exhaustive article on the
84
subject, whicli covers so much ground that I copy it entire,
follows :
It is as
" The attention of parliament and of the public has lately been called to
the question of abolishing the (irand -Jury system, bj' reason of the pul)lication
of replies of judges and others to a circular letter of the Minister of Justice
asking for information on tl>e subject. Tlie result is given in the following
summary : Forty-eiglit in favor of doing away with (Jrand Juries, forty one
against, and twelve doubtful. Substantially this is the verdict, althougii tiie
classification as regards one or two of tiie opinions given nuiy be considered a
little defective. The odicials c()n.«uUcd endtrace neaily all the superior and
countj' court judiciary, and it goch without saying that the views and align-
ments of these gentlemen are entitled to great weight. Notwithstanding tiiis,
it may be considered fairly open to discussion tliat some of them have luid
little or no exj)eriencc of ihe working of the system, and that the arguments
of several, althougii plausible, do not reach the practical test of every-day
contact with (iraiid Juries With due deference to the contention of those
in favor of the continuance f)f the present order of things, we propose to
brielly analyze the return and eiujuire whether, after all, any sound, piactical
reasons have been adxaiiced for tlie retention of the Grand Jury as part of our
system of administering criminal justice.
" One feature of the eiKjuiry is rather ludicrous. To take the opinion of
a body as to the necessity of putting itself out of existence, is very near the
line of the iiumorous, and certainly is not the safest method of getting reliable
information. We su])p()se if tlie ([uestion were j)Ut to tlie judges coinpo^ing
the liigh court of justice for Ontario, 'Are you in favor of being aliolisshed
with all the privileges and emoluments of your high office?' we would not
re(juire to wait very long for an answer. Ask the members of the Local
Legislature or of the Dominion Parliament if they are in favor of doing away
with half their number, and the reply would be sharp and short, althougii it
may be faiily argued that a deliberative l>i)dy one-half the size nnnuirically,
would be cheit|)er, better, and infinitely more expeditious in the despatcJi of
business. If we make tender enquiries regarding tiie number of cabinet
ministers, either in the provinces or at Ottawa, and, in our solicitutle for their
and their country's good, mildly suggest that one-half might be abolished, tlie
answer would'be in the shape ot legislation to prevent the spread of dangerous
ideas suliversive of good government. We frankly admit that our answer
would very largely jiaitakc of the same character as those of the classes to
whom we refer for the sake of argument, if we were placec in their position,
but it would be the answer and judgment of an interested party, and of ro
value whatever in determining tlie point in cpiestion. 'I'o obtain a proper and
unbiased ojiinion regarding any sul)ject. it is surely not necessaiy or safe to
extract information fi-om those whose existence is imperilled by the discussion.
We must therefore look for (uir facts and iiiforniation outside tin; (Jrand •Iiiry
room. One thing more in tiiis connection niiglit be profitably adiled to what
we have said In addressing (Jrand .luries, judges almost invariably point
out to them the necessity for the system being continued, and the grand old
historic character of their body is eulogized to the highest degree, and the
jui'ors have it strongly impressed upon their minds that they stand as a bul-
wark against o])prossi(in and tyranny, and constitute the most important
factor in tiie administration of the criminal law. After being aildressed in
this way for half an hour or more, the good and true yeomen and sfpiires con-
stituting the (Jrand .lury are naturally filled with stiong ideas of their own
greatness, and are convinced, when thus told of their imjiortance by a high
judicial authority, that the constitution would be imperilled if the shutters
were put up and the doors of the (Jrand .Jury room closed. We may also
point out that in several instances, (Jrand Juroi's themselves have favored a
cii.iiige, taking, perhaps, in such c;:ses, s)in-t!iing of the spirit in wliicli they
85
wore niMri;ss(!(l l)y ;i jiiilgo nppDscil tf) tlu-'ic oontiimiiiiL'e. On tin? wliotn,
tlicM'cfoi'e, \v'i3 s;iy tliiit the opinions (»f (! rand Jiii'ie.s iiro not enlitlinl t) tiie
weigiit 'ivliicli is iiltaclied to tliein in dealing witli a (piestion so personal lo
themselves as this undoiil)tedly is, and we venture the opinion that hy taking
a certain ocurso, one way or the other in his cliarii;e, the judge eould ohtaiu a
reply vvliich would bs hut the reflex of liis own viewj delivere 1 at the opening
of the court.
" Dealing now with the return, we point out that the answer of tlie
attorney-general of this pr()\incc dfjes not contain any reasons for his views,
hut sini]>ly states tiiat he and the nrnjority of his colleagues are of opinion
that (irand .Juries should not he aholished. 'i'he opim'on of himself and
colleagues is entitled to the gravest consideration, iiut it might lie that his
()l)jections could he fairly met hy hotli argument and facts If we were in
possession of the reasons which induced him to come to his conclusion, «e
might he in a position to speak more definitely with reference to Lis reply,
and modify, if not c()m|)letely answ er, the ohjections to a change of system.
" His Lordship Chief Justice Hagarty feels it wouhl not he safe to leave
the functions of the (irand Jury to he performed hy an oHicial like the present
county attorney owing to pecuniary and professional interest, hut suggests
only tiiat until something clearly hetter and more effectual (an he suhstitiited
for it, the grand in(|uest ou^dit to he retained. In this we reailily concur,
hut he does not say that the duties could not he pei'formed hy some other
means.
" His Lordship Chief Justice Ai'mour declines tf) discuss the (jucstion,
and His Lordship Chief Justice (!alt is strongly of opinio:i that the (irand
Jury system should he retained.
" His Lordship the Cliancellor takes very strong ground, and whilst it
may he m'ged that iiis pi'ofessioiiiil and judicial experience has not extended
to criminal mattei's, we think, it will he fairly admitted tliat there are few
men more coin})etent to pronounce an opinion upon any siihjeet connected
with the administration of justice, civil or criminal. He saj's : ' I have long
heen of ojiinion that the time has come tf) ahandon the expensive, anomalous,
and circumlocutory process.'
" Their Lordships Justices Falcnhridge and McMahon are in favor of the
system. Both these judges have had wide exj)erience in matters |)ertaining to
this (]uestion. Mr. .Justice McMahon has, perhaps, more than any other
judge on the heneh, had that experience whicli is necessary to form a practical
judgment relating to this question.
" The Honorahle .Justices Ferguson and Street hoth argue in favor of the
Orand .Tury, hut at the har they were imt engaged in thit class of work which
hrings men into close cfinnection with the administration of criminal justice,
whei'e a ])ractical Rnowledge of the working of the (irand .Jury system can
only he ohtained.
" His Lordship Mr. .Justice Rose reasons uj)on the (piestion at length,
and ])Uts the case very strongly. He places the matter largely upon the
ground that grand jurors are not suhject to the liias of a crinunal prosecutor,
and agrees with Mr. .Justice Falconhridge and several of the other judges that
the function of the (irand Jury as an educator is most imjjortant. We are
free to admit that his answer contains all the arguments that can reasonably
he advanced in favor of his views. They are clearly and forcibly put and
deserve special attention.
"His Lordship Mr. Jiist.;f;e Robertson, who had, at the bar, a wide
experience in crinunal matters, bases his views largely upon the fact that the
grand inquest is an educator of the people and inspires confidence in
constituted authority. He also puts his case very strongly.
Sfi
" We liiive lefcned iiioi'c |):irtictiliii-ly to tlie ofiiiiioiis of our .superior
court jii(lj,'t!s hociiUHi! t liny (Iciiiiiuil Hiii'ious i.'oiiNi(U^iat inu tioui tlioHc wlio are
(liscussing tlu; (|U(JMti()n. 'I'lu' vvnl point, liosvc\(r, wt; ^sullUlil with all
• li'fercniM!, hart not liei'ii toUL'liiMl upon, fXcL'])t hy Mr. Jiislicc ito.sr, niiniciy,
thill the work could he dom; niore etlicienlly, with greater protection to tlie
piihlic and to the indi\'idiuil, and at a much less expense than hy (irand
Jules, if i'esponsil)l(! othcers, specially (|ualili(Ml for the position, were
ap!>r)inted by the crown. We agree with all tliat haslteiMi saiil with reference
to the county attorneys, and without retlecting in any way upon thcsi- gent le-
inen \^ e also leadily admit, an<l theiccau ))i; no douht of the correctni'ss of
the position, that (Irand Juries could not l)e aholisheil without souk^ oliiccr or
other tribunal to take their i)lacc, and the real (piesti<»n seems to us to be :
' Would an olHcer such as we have suggested in former issues be a good and
sufficient substitute, and be enunently more satisfactoi-y than the jii'esent
system?' 'I'his (juestion has not been answereil.
" The result of this analysis of the opinions of our jiulges here; is, there-
fore, that as regards the bare issue of doing away witli or retaining Orand
Juries, they favor their retention. This, after all, is not capable of receiving
any other satisfactory answer. It has never been pi'cteiuled that tlie ai)oliti(in
of the (irand Jury without other provision being made would I'esult in a
satisfactory state <.f atl'airs. Kvery one knows tliat as matters stand at
present — with an uiiprofessioual and comparatively untrained migisli'acy
dealing with [)relimiiiary imt^stigat ions, witii count}' attorneys, very
fretiuently appointed on [)urely [)olitical grounds without reference to mental
or leg il (|ualiticatii)ns, and, in add tioii to this, with a nefarious system of
p lying crown olHcers by fees unfortunately in existence -it would bo madness
to do away with the only safeguard, however slight, against tlie petty
importance of some of our justices of the peace, (U' the maudlin I'ondition and
intensi! cu])idity of some needy eoiinty attorney. Assuming, hoW(!\er, liiat
an otticer, like a procur itor fiscal, were ajipointed for each circuit at a salary,
say, of five thousand dollais a year, and that, as the chief justice of the court
of apf)eal suggests, he should not lie allowed to pi'actise in i;onteiitious business,
and assuming still further that the other duties ot this otiicer would emluace
all that a (Jrand Jury does in criminal matters, and wouhl bring to bear on
the cases submitted to him, what the (Irand .lur-y never can or will, namely, a
calm, deliber te, trained judgment, with no local feelings, no helping a
neighbor out of a hole, no vindictive punisimient of a jjcrsonal eiicni}' of one
or more of the jurors l)y sending liiiii for trial to take his chance in the felon's
dock - undei- such conditions, with the details carefully considered and stiict
provision made against anticii)aled evils, would the answers of tiiose of our
judges of professional and judicial exjierient'e in criminal proceedings still be
in favor of retaining a secrt;t in([uisition in this c(Uintry '.' We l)elieve if the
(juestion had been submitted in the way we indicate it should have been, eveiy
answer of practical value would have been for abolition.
" Tidk of protection to the accused! ICvery assize judgi; knows that
(Jraml .luries jiresent for trial at e\ei'j' court in the country men against whom
there is not a particle of legal evidence of crime, nay, not even a shred of
suspicion, and that cases are fre(|Uently withdrawn from the petit jury l>y
reason of the judge holding that no crime appears either by the indictment or
by the evidence frr the crown. Every judge, we say, knows this to a greater
or less degree according to his experience ; but the judges do not, and, by
reason of their ])t)sitioii, cannot po.ssibly know how many guilty men are
protected ami relieved from the penalty of their ci-imes by a Urmul Jury
trial !
" County judges, by reason of their local knowledge, are specially fitted
to speak u|)on this matter, and they are well avvaie of this l)lot on the admin-
isti-ation of justii'C, and it is a significant fact, that they stand t\\< iily-iiro to
nin<' in favor of abolition, uolw ithstanding the liald way in which I lie (piestion
h:
1-
:<)
was put t> llu'iii. Add 1(1 this miijitiity, .Iud,'^o Wood, wlio favors aliolitioii uh
ic'giirdH tliu Hossioiis, and apologotii'iilly pleads foi' a coinproiiiiso, and the
niinoiity is a very small ono. 'I'lio point wc make is tiiis : 'I'lic county court
judji^t's are tlirown into vory closu contact wilii the workings of all institutions
in their districts. 'I'hey nux more fu'(|uently with the ])eople than do the
superior court judges, ami in constMpuiice tliey havt- a fuller knowledge of
matters like the workings of tiit^tirand Juries, and are more in toueii with the
way the or<liuary uum transacts his allairs than judges whose time is spent
almost w holly in an atmosphere of law . 'I'hey understan<l, from the vei'y
nature of their localized position, what intluences have heen at work when
there is an evident niiseairiage of justice. Most of the county judges ha\c
l)eeu practitioners and politicians in their respective counties. They know
the fact ions and local jealousies iind fandly diti'crenccs of half their constituency.
They know most of the men on the grand inipiest at each court, and when
.sonii; failure of justice as regards either the innocent or guilty occurs, they
can put their linger on the weak spot and say fiom what cause the innocent
was ^)resente(l for trial or the morally and legally guilty man allowed to escape.
We need not individualize, hut our reader's will at once rccognizt; the fact that
tluMc are a nuudier of the county judges who have had \ ery wide ex|)erience
and have given tlu! nuitt(!i' special attention, and it is not saying anything
disiespectful to the superior couil hench, that the opinioi] of such n.eii must,
from their surroundings, j)ersonal (jl).servali(m, and local knowledge, he the
very heat evidence we can get in the suhject. Senatoi' (>owan, frcun his
long judicial experience, and from the s))ecial attention he has given to this
matter, is surely entitled to speak with weight, and taking his arguments and
views in favor of abolition, one naturallj' asks, 'Are they leasonaljle and
right';' It must he admitted they are, and mine than this, they have never
bjen successfully controverted.
" Assuming his estiuuite fif the cf>st of (Irand .lui'ies to he correct, let us
look for a moment at the results which might he ohlained froni a judicious
application of tiie fuiul. Five crown oflicers coulil he appointe<l for the
})rovince, oiu; for each c'rcuit, and nught he paid a salary of .'ji.'iltttMt a year
each, and tiieu the [U'ovince would he a gainer to a considerahlc extent
timmcially. It costs for crown counsel about ft=l (),()()() j)er amiuni out of the
provincial treasury, so that the change we suggest would reijuire only $15,()C()
additioiud, and the country would thereupon he relieved of the whole cf)st of
the presnit system. And it occuis to us that the suggestion that an ofKcial
like a circuit crown (dKcer would be more subject to bias and partiality than
the (irand duries are, is entirely gratuitous. The same I'cmark would aj)ply
to the judges themselves, if there was anything in it, but the fact that the
judges are not influenced is a convincing reason for believing that a crown
oriicer, paid a salaiy ecjuivalent to that of a superior court judge, and selected
not on political but on nu'ritorious giounds, wo-dd be just as res|)ectable, just
as unapproachable, and just as pure as the purest judge on the bench.
" We desire, before eonehuling, to refer to one or two of the arguments
of those ()p])osed to abolition. The remarks as to the blooiUhirstiness of crown
officials would a|)ply, in a less degree of course, to judges. Meaning no offence,
and fninkly stating the cast;, is it not the fact that si-me of the assize judges
are looked upon as acquitting and some as convicting judges V Does this
make them any less efficient otHcers'.' .''Ome men are naturally merciful, others
naturally severe, in their private as well as public rules of life. Some detec-
tives are eminently fair, some the reverse. !*()me crown (fficers press
for conviction as they woidd for a verdict in a civil suit. Some, again, har.dle
the crown prosecution with kid gloves These anomalies are due hugely to
the fact that the men themselxes are by nature inclined one way or the otiier,
as the case m ly be, but, on the wiiole, a crown ofHcer, experienced and
capable, is just as likely to he a fair man as the judge before whom he ajijjcars
as prosecutor. It is a well known fact that the longer the experience of u
ss
Clown trnuiiHel, Ihe more careful lio in in coniliic-tjiig crown l)UHin(>Hs, and tin!
fiuill.s complaint!!] of aris more apparent tlit; more incxpcri»Mi(rcil tiic crown
counsel if. 'I'iiiM is surely a strong ar'^^ument in favor of p(M'manent , trained
men to till tlie reHp()nsil)le jxnition of prosecutors. We Ijclievo a jmlgu, if lie
li:id his choice, would prefer an old expiMienced counsel in criminal
prosecutions to one of less practice in these m itters, given the same al>iiity
and <lis(M'etion in iM>th.
"Then, as to the educator featui'es of <iraud linics, advanced l»y sonu; of
the judges, we need oidy glance at the actual facts to see what weight thia
has in the discussion. 'I'iie (irand .luror.s are called at t\u'. opening of the
court. They arc addressed ity the pi'csiding judge and dismiss(;(l to theii'
<luties ; from that time untd they diaw their indcnmily, they are a
seci'ct conclave or a visiting l)ody at the |inl)lic institutions. I'iiey are rarely
prt^scni in court except when they return their iiiils I'liey do not enjoy the
advantages of a petit jury, who are engaged day after day in hearing evidence,
weighing facts luider tlie careful su])ervisiou and directit>n of the court,
listening to ahle speeches by the counsel, gaining a useful, knowledge of law
ami husiness, and peifofming their duties under the censorship of the jness
and the puhlic. To say that two or three day.s' attendance as a (ii'and .Inror
at an assi/e, once piM'haps in every six ov seven years, and often only once in
a lifetime, is an educator, is not the kind of ai'gument tiiat would weigii witii
the very men who use it as such if advanced in tlie trial of an ordinary action
before them. Tiie visit to the public institutions is also intrnduced as an
iiii|)ortant fcatnrs. This could be done by aj)pointing a few of the [letit jurors
t'l do the same work at no expense, and with an e(|ually good result. The
fact that these institutions are undei' the control of a governnu'iit responsible
t;) the pco|)le and subject to the supervision of compcitent iiispectoi's, is
suliii'ient giiai'antee liiat the public interest in that I'esjiect is well guarded,
besides, it is scarcely necessaiy to point f)ut that fifteen or twenty (Jrand
.lurors, attending in a body in a jn-efunctory sort of way, would be the least
likelv of all men to have abuses thrust under tluiii' notice, or to fei-ret tiiem
out if they existed
" Again, as to influence from outsiders, is a well-paid, able, and carefully
clioaen ci'own oflicial more likely to be swayed one way or the other in the
discharge of his duties than is the judge who tries the case '! We do not
believe that either would be affected, and the only facit which could give rise
to such a suspicion, is tlie present system of making appointments on political
grounds.
" Let a good man be appointed for each circuit, and let his salary be
sufficient, and he will also l)e beyond the reach of influence. Work which is
only half done now, woulil be carefully and honestly ])ei'formed, and instead
of counsel getting ids facts as the case ])rogresses, he would come into court iis
a faithful guar(lian of ])ui)lic interest, .uid be of valuable assistance to the
l)unch in clearing the innocent of imputation, and ))unishing the guilty for
their crimes. Tlic police officers would not be, as they are now, left to giojie
in the dark, to find that much of what they have done is discarded, and that
their theory is entirely opposed to that of the crown counsel, when it is too
late to ovei'come the difficulty. I he fact that for the past two or three ycii.rs
in Toronto alone, the court and all its otiicial", the (Jrand duries, counsel, and
witnesses, have been kej)! for days in tlie perfoiinance of laborious and
inportant duties with scarcely a single conviction, siiows that something is
wrong in the administration of criminal justice and re(|uires a speedy and
effective remedy. We believe that the appointment of a public jjrosecutor for
each cii'cuit, wliose duty it would be to make the most searching eii((uiries
into evei'v criminal prosecution, to throw out all idiarges which are not well
founded, to direct the police properly in tlie discharge of their duties, to keep
a careful watch over the criminal eleinenis in their district, to see that every
case which is brought to trial is thoroughly prepared, to guard against loose-
80
ncMH on tlie niio hand and uiiMcriipuloiiH /oal on the otiiei-, would Ix; a liIoHHing
to tlio goviirnnieiit, tlic jiid^fs, iind llic |»id)lii", iiinl would Ik^ inofctiililc in
evory way to tho irn^spoiiMiMc, uMtniincil, and looot't(^ii prfjudii'i'd hody wliicli
Htan<ls in tlu' way of tlii-t l)iMMi{ done. 'I'iujoinl.ioady, the ^'laiid in(|VU'st in a
nol)lo and digiiiliod old iiiHtitulion, lioai'y with ayn and fo.sHil respect aliility-
|)rac;tiL'iilly, an an iiiMtiuniunt in tlic punishment of liie ^uilly, or tiu; jirotocJ-
lioii of the innocent, tiiei'c is, to nsu the iiistoric words (tf a well known
politieian, 'notiung to it.'"
IMAGE EVALUATION
TEST TARGET (MT-3)
#< 4
f/.
-^
1.0
I.I
JSIIIM IM
- iitt |||||Z2
12.0
.8
1.25 1.4
1.6
^ 6"
»
7
<9
/}.
ez
w
^^%
*^'-
^v
o
^.
/
/
///,
Photographic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, NY. 14S80
(716) 872-4503
<^
;\^
«•
4^
\
\
^
a
V
x-^^
^<i.
^4.^
'%"■
rv*
i
&> €^.
Q>-
OPINIONS OF JUDGES, ETC., WHO FAVOR ABOLITION,
CONDENSED FROM REPLIES MADE IN ANSWER
TO THE CIRCULAR OF THE MINISTER
OF JUSTICE.
SUPKEMK COUKT OF C^\NAI)A.
Mr. Justice Owyiine, a very able criminal lawyer, engaged lor many years,
l)ef()i'(! liis ele\ation to the Ontario Ijencii, as crown counsel, and who is now
one of tlie justices of the supreme court at Ottawa, says : 'J'he itlea that tiie
(irand Jury system constitutes in the present day the palladium of Uritish
liherties and serves as a shield interposed hetween the sulijcct and the crown
necessary for ihe preservation of tiie liherties of the former from tlie tyianny,
injustice and oppression of tiie latter, jjartakes altogether of too media-val a
character to justify its receiving a moment's consideration. No perils to the
due admiiiistration of criminal justice can in his opinion nowadays arise from
any interference on the })art of the crown. Tn some few state prosecut 'ons
(Jrand Juries may have intervene<l as a shield between tiie subject and die
crown, or courts subservient to tiie crown, l)ut since judges iiave been rendered
independent of the crown, such a scandal lias been effectually removed. It is
tlie petit jury, and not tlie (Jrand Jury, which has always coii.stituted, and
still constitutes under the direction of independent judges, the true jirolection
of the subject against unjust and frivolous prosecutions, whetiier instituted
on Itehalf of the jiublic or by wicked and maliciously disposed persons making
false or frivolous accusations fo>- the gratification ot their own seltish,
vindictive and malignant purposes. His Lordship gives other weighty reasons
in favor of abolition, Init s]iace will not permit tlieir being even refei'red to,
except to say tiiat the system might be abolished not only without detriment
liut with positive adsantage to the due, speedy and inexpensive administration
of the criminal law.
Mr. Justice Taschereau . This learned gentleman, a colleague of Mr.
Justice (i Wynne on the supreme court bench, and the author of tiie famous
work on criminal law which bears his name, also comes cut in a most decided
manner against the (1 rand Jury. He refers to the work of the criminal law
commissioners of England, and shews that the weight of ojiinion preponderated
against the maintenance of the (Jrand Jury. In refuting the arguments as to
its anti(juity, he cites the following from the celebrated John Pitt Taylor :
" There is an instinctive tendency in the minds of most men to admire and
rev'jrence the wisdom of bygone ages, and to cling with affection to those
institutions which have stood the test of centuries, Such feelings ai-e natural,
nay, laudable, but they may be indulged too far. 'I here is no doubt that in
the days <if tiie Tndoi's and the Stuarts, the (ivand Jury was the bulwark of
I'wiglish lilierty. in those unscrupulous times, the judges, being removable at
the pleasure of the crown, and petit juries being subject! 1 to imprisonment
and line if they dared to find a verdict contrary to tlie direction of a
sycophantic bench, a party who had become obnoxious to the reigning power
could only lioj)e for security through the medium of the (irand .h<ry ; but at
the present ilay, when the judges are actuated by no personal fear or hopes,
when petit jurors are at least as independent as the members of the grand
iiKjuest, and when an enlightened press promulgates, and by promulgating
controls the ])i'ojeedings of courts of justice, it is idle tf> suppose that the
intervention of a (Jrand Jury is any longer necessary to protect the defendant
from oppression and injustice."
91
Mr. .Iiistioe Tasclierean also states that as late as the year 1872 a learned
jud^e ill Kiigland lield tliat a (iraiid Jury is not hound hy any rules of
evidence. He also jjoints out tiuit it is undouhted law that a (Jrand Jury may
present an indiotuient upon their own knowledge, and then asks, if a (iranil
Jury acts arhitrarily where is the remedy? His i^ordship also cites the
remarks of the late ("iiief Justice Harrison, in Ontario, who, (juoting Lords
Hrougluim and Dcnman in sujiport of his views, called the (irand Jury an
expensive nuisance; and the opinion of Lord CiielmsforJ, wii > often
endeavored to improve them out of existence.
oNTAiao.
Hon. J. A. Boyd, the learned chancelloi-, of Ontario, says he has "long
been of opinion that the time has come to abandon tiiis expensive, anomalous
and circundf)cuting j)rocess. "
The late Judge Sinclair : This gentleman (the autiior of many valuable
legal works, and recently deceased,) after careful consideration, tiiought no
harm could befall the country by the abrf)gation of the system. He states he
was formei'ly of a different opinion, but that a iiund)er of c ses corning within
his experience, in which some I'emarkable failures of justice had resulted from
the iuibit which (irand Juries not infre(|uently use of usurping functions not
l)elonging to tluim, and assuming those of tlie judge and tiie petit jury as well
as their own, and of ti'ying cases given to them f(jr consi<k-ration in direct
opposition to tiie ex[)ress instructions of the court had weakened ills faith in
tiieir utility ; and he con.sidei-ed that other and much more ieli;J)le means
nught be fouiul for the protection of the individual from malicious and
unfounded prosecution, as well as for ))ringing offenders to justicn. He con-
sidered that the extended jnrisdicti<ui given to county judges and police
magistrates in criminal matters had been productive of much good and had a
tendency t(j <liminisii the number of offences Ijy furnishing the means of j)ronipt
conviction and jjunishment of offenders, and that, wliile on the one hand
persons charged with ott'enees are not so liable to be improj)erly convicted, if
innocent, on the other the chances of escape are lessened in case they are
guilty.
Judge Ross considers at considerable length the great costliness of the
system, and shews who are pecuniarily interested in maintaining it. He
says: "(irand Juries are worked to clear the guilty and ciuub mn the
innocent." That the (irand Jury can be packed, that it is a relic of mediaeval
times, a star chanibei-, capable of grohs abuse, but with little capacity for good,
that it is an Euglisli institution com])osed of high caste people, mcndjcrs of the
so-called county fannlies, very useful for the protection of such families, and
for smothering scandals in high life, as well as for doing strict and impartial
justice to the pool-, especially where the interests of landlords and poachers
come in conflict.
Judge Lazier : " They could very well be dispensed with, particularly
at the general sessions. Since the establishment of the county jutlge's
criminal couits and police magistrates' courts, having eoncurrent jurisdiction
with the sessions, when parties elect to be tried by these tribunals, the greater
part of the criminal business disposed of at tiie sessions has been, and is, being
disposed of at these c> urts without any complaint being ii iide < f the
alisence of a ju'eliininary investigation before a (irand Jury. This, adde<l to
the fact that nearly all committals to jail ft.r trial by jury are now made by
police magistrates {usually lawyers liy jirofession) renders the intervention of
the liranj Jury less necessary than formerly. Their jiresence of late at the
sessions is little more tlian a form, by reason of the little business recjuiring
their attention, aUhnugii involving very (considerable expense. ThtM'X|)criment
migiit well be tried of dispensing witii tiie (irand Jury, and their duties be
left to be jierformeil by the police and other nKi;^istrates and the county
attorneys or other public prosecutor.
02
m
Judge Price : "If some satisfactory official ))oanl could be named, before
wliom tlie eouiplaint and evidence could be laid, and no indictment
proceeded upon, except such as such board sliould advise, I think (irand
Juries might be dispensed witli and money be saved."
Judge Deacon, during a judicial life of over twenty-four years, during
which he has annually assisted in the selection of persons to serve nn both the
panels of the Grand Jury, and having had frequent opportunities of observing
the working of the system, is of opinion that tiie abolition of the system would
be in the public interest. In sclectinj^ the juries it has often been remarked
that it would be mucii more desirable to place tiie men now selected for
(i land Juries upon the petit jury list, where they coulil be of some use, and
where they are most wanted ; and all the selectors agreed as to the soundness
of tlie observation. It is a venerable institution whicdi did good service in
by gone years, but it was always a piece of maciiinery which, in the hands of
unscrupulous men, was cai)able of doing mischief and defeating the ends of
justice. If tile evidence laid Ijefore them could always be presented by a
c(»inp3tent officer, and under tlie direction of a judge, there would then be
?ome reasonal)le certainty that it was fairly put ncfore them and their action
upon it being open to public criticism, there would be more confidence in the
fairness of their finding, and tiieir practical review of the committing justice's
decision, l-iut as it retjUires at least twelve to agree, in order to find a bill,
how often has it happen ed that when the panel in attendance was not full,
five or six men, and sometimes fewer, have been able to control tiie ten or
eleven who were in favor of finding the l)ill — the majority for the time being
controlled by a mere fraction of their number This has always been a
dangerous weakness in the system, and will always be so. His Honor says
that the (Jra.ud Jury was bn^ught into existence for the protection of innocent
citizens from interference by the crown or by powerful subjects causing unjust
prosecutions, but as these proceedings have long become things of tiie past,
the (J rand Jury as an institution is no longer necessary, and lias outlived its
usefulness, and he agrees with the views presented by the Hon. Senator
(iowan in his address to the .Senate.
Judge Ardagh, after seventeen years' experience, thinks that the useful-
ness of (irand Juries has borne but a very small proportion to the expense
involved in connection with them. He admits that if they still served the
purpose for whicii they were originally created the expense ought not to be
taken into consideration. He asks : 1st. Does the (iranil Jury not serve as
a protection to the suliject as against the crown? and answers that in this
country and at the end of the nineteenth century such a question hardly
reciuires serious consideration. 2nd. Does the (irand .Jury serve as a safe-
guard against unjust and oppressive prosecution ? He answers by saying that
in his experience its powers have for such a purpose never been really called
into p'ay, and that on the contrary he knows tliem to have been used to
interfere as a shield to the guilty. He says tiuit (Jrand Juries are now open
to the Infiuence of tlie counsel for the crown and depend mucli upon them for
advice — though, theoi-etically, they are su])posed to be an entirely
iwh'pciKb'nt body. He does not insinua; e tiiat crown counsel ever knowingly
exceed their duties, but they have opportunities for influencing them whicli in
the nature of things they make use of, albeit ]jri()r to the actual trial of the
prisoner. No responsibility (beyond that of their own consciences) is cast
upon either tirand Juries or crown counsel, or are their conduct actions or
motives ever inquired into, nor can they lie.
Judge McDonald has been brought officially into contact with the work-
ings of the Grand Jury for fifteen years as county judge of Leeds and
Grenville. He considers the Grand Jury may very well be dispensed with.
A majority of the cases which formerly came before the (irand Jury are now
removed from tliem. And while (juite agreeing that there is much — even
though it be perhaps merely a sentiment— in the principle that no man may
03
be convicted foi- an indictable offence unless twenty-four men -bis peers —
biive pronounced him guilty, it is seen that a great many do not avail them-
selves of this j)alladium, but elect to be tried by a jadge or a magistrate
without the intervention of a jury. His Honor does not believe there woidd
be practically any injustice done an accused person if he should, at tlie sitting
of tlie court, l)e placed upon his trial before a petit jury without a previous
investigation being had. The efficiency of the jury system would be increased
by tlie al)olition of the Gran<l Ju'-y for then the best materia^ would be
available for service upon what is now called the petit jury. For a matter of
sentiment, on account of its being a historical institution, the public should
not be put to a great expense without any commensurate return.
Judge Boys favors tlie abolition of the present (irand Jury, and says they
have outlived their usefulness. He heartily endorses iSenator Gowan's
remarks, when introducing his motion before the Senate, and suggests the
appointment of three officials as a substitute for tiie present system. His
remarks will repay iierusal.
Judge Upper is of opinion that the time has arrived when the functions of
Grand Juries can be safely dispensed with. Whatever reasons may have
existed ages ago for establishing the system as a part of the machinery of
criminal justice no longer exist.
Judge Robinson, after long experience, favors abolition. He says he
never knew tliem do any good, and has known them do harm, some instances
of whicli he gives, and refers to the case of (iovernor Kyre, wliere two (irand
Juries refuted to allow tliat individual's conduct to be tried.
Judge Lacourse says that in consec^uence of tlie passing of different acts
of pirlianent since 1857 he is of opinion tiiat the system has become
practically unnecessary, except, periiaps, in large cities: He thinks the
(Jrand Jury system has become a thing of tlie past.
Judge Fralicksays that in all cases where a f.risoner elects to be tried by
the county ju Ige the services of the Grand Jury are dispensed with. Their
chief functions are therefore to revise the work of the convicting magintiate,
who has sent a prisoner up for trial. By far the larger number of criminal
informations come before a police magistrate, generally a legal practioner, who
is paid by the county for his services. His Honor is of opinion (Jrand Juries
are unnecessary, and recommends a substitute, as will be noticed in another
part of this review.
Judge Ermatinger is of opinion the Grand Jurj' has survived its usefulness
and should be abolished. He would not advocate al)olition if committals for
trials could lia made by the magistracy, as it at present exists in Ontario. He
recommends that the present magistrates be given power only to issue
summonses and warrants in cases other than trivial offences triable by them-
selves, and that the county judges should hear the evidence and commit for
trial, or that stipendiary magistrates be appoi.ittd in each county for the
same purpose. Tiie county judges would be the cheaper, as no doubt they
would be willing to act, on a reasonable addition being made to their present
salaries for the extra Wi)rk. His Honor's contribution to the discussion is
valuable, and should be ciirefully considered.
Judge Hughes says that the Honorable Senator (Jowan, from a long
experience of nearly forty years, and his own observation, after an experience
of tliirty-seven years, lias given each of them a wide field of oliservation, and
he entirely affirms all that Senator Gowan has advanced on tiie subject of
abolition. In speaking with men of long experience he has, vith few
exceptions, founu an almost unanimous conclusion that the functions of
the (irand Jury are an expensive relic of times which have now no parallel
and that there exists not the semblance of a necessity for the continuance
of a system which was once a useful one. His Honor enters into a considera-
tion of what should be substituted for the Grand Jury, and his remarks
m
04
will he found under the head of " A Crown Prosecutor " in another part of
this work.
Judge Senkler : It is a great expense without adecjuate results. If
abolisihed, the men relieved as Granil .lurjrs would he available as petit jurors
and the result would be a better class of men for the latter, an end much to be
desired.
Judge Davis : After an active life of thirty y-ars as crown attorney,
crown prosecutor and judge, " I have come to the conclusion that vhe (Jrand
Jury system is cumbrous, insufticient and needlessly expensive."
Judge McRae : The chief objection is that it is a secret institution, and
having to deal with matters of public concern, individual jurors do not feel
that responsibility to tiic public which tliey would if they were acting openly.
With an intelligent magistracy and our system of crown attorneys there would
be no fear of any person being put upon trial without cause.
Judge Robb : I believe the change wouM teiul to simplify and expedite
the administration of criminal justice, would set free a desirable class of men
as petit jurors, and would be a saving of expense. As against these I know
of no evils that couhl not be guarded against by proper legislation.
Judges Kingsmill and Barrett consider that the only reason for the
continued existence of (irand Juries is the protection they atl'ord to the
individual against the ignorance or malice of a justice of the peace. They
think the usefulness of the (Jrand Jury was undoubted when first instituted,
but that tliese days have passed, and they now cost more than any benefit
derived from them justifies, and they have frequently in past years not found
i dictments on evidence which would have warranted it, and because, as
commoidy believed, of undue influence. They are averse to the present power
of Grand Juries i-^ find a bill without the case having been first before a justice
of the peace What their Honor's say on the subject of a substitute for the
present system will he found under its proper heading.
Judge Wood says that if it is the intention to leave the jurisdiction of tiie
general sessions of the peace as it is, he is of opinion that as to them, (iiand
Juries might well be abolished. In the assize courts this would Iml i good in
the majority of cases, but in treason and some other cases lie would not
advocate the total abolition of the Orand Jury until satisfied that wliatever
was substituted for it would be likely to conunand public confidence. Doubt-
less a beneficial result would be tlie improved character of what would then
be the jury. He suggests the taking of thirteen men from the panel to do
certain special work, and upon that being done, they could fall l)ack into the
panel again.
Judge W^oods considers that modern society in its new elements and
agencies is too advanced and complex for the faitliftil aiul efficient working of
this branch of our criminal system. The considerations under which it found
its usefulness no longer exiot. The lodges and brotiierhoods are an element in
every community which do not hesitate to interfere with the administration
of justice in order to the immunity of its members, nor even are the clergy
free from the reproach of giving countenance to petitions for the release of
criminals. His Honor has no doubt that Grand Jurors are subjected to a
heavy pressure from these classes, and too often to the obstruction and
perversion of justice. He also refers to the great expense of bringing in four
sets of Grand Jurors every year, and to the successful working of the Speedy
Trials Act. He considers that two things are desirable in a criminal
prosecution: 1st. That there should be as few persons connected witii it as
possible. 2nd. That local partialities, prejudices or influences should be
controLed by an outside supervision. He concludes that there is no better
way to secure the effectual prosecution of all offenders than by the appointnn nt
of police magistrates and strengthening the hands of the crown attorney, and
giving him supervision of every case coming before the magistrates.
95
Mr. Justice McCartliy tliinks tho time has arrived for almlishiiig the
(Jraiid .Jury, 1st, because of the very hirge nuinl)er an<l intelligence of
magistrates ; '2nii, the light so frequently taken advantage of by prisoners of
being tried before the county judges, and 3rd, tlie expense.
gUKBKC.
(Jhief Justice Johnson says that where there is a system of paid,
professionally trained and competent police magistrates, the abolition of
C;and .luries is desirable in certain cases, but not in matters of a more or less
political couiplexion, such as seditious libel. In another place the learned
judge's remarks as to a substitute will be found under the proper head.
Mr. Justice Pagnueio says tliat the inconvenience resulting from the
system are manifold and the manner it is ejiforced adds to its inherent
defects Jurors lack that practical knowledge which a trained judicial
otticer or a judge possesses for the discovery of crimes. They are liable to
surprises, and their feelings will often be appealed to and abused ; in political,
religious and racial trials a conilemnation is often next to impossible against a
partisan, a co-religionist or a countryman, and criminals escaje. Jurie>* are
often found fault witli as giving criminals too many chances to escape ; but it
is rare that tiiey are suspected of condenniing innocent persons. The secret
and ex partf proceedings before (irand Juries add considerably to the incon-
veniences of the system, especially where the standard of jurors is low. Ho
is under the impression that cases are not sufficiently considered by (Jrand
Jurors and that they are too easily approached, challenges being unknown,
and impossible opinions .ire often found before Grand Jurors meet together in
their room. Suspicions of this kind are, by themselves, a great drawback in
this mode of administering justice. Juiors owe their existence in England to
the desire of providing a guarantee against the uinlue influence which the then
organization of society and of the government, and former al)uses by persons
high in authority justified the people to fear from permanent judges or officers
appointed by the Crown. They are now no longer a bulwark of personal or
political liberty. Their main office is now to control the decision of the
magistrate or that of tiie judge and to guard against persecutions from motives
of reveiigc, bias or interest. His Lordship's opinion is a very lengthy and
able one. T liave extracted here and in another place all I can find space for.
Judge Taschereau considers the Grand Jury ane\i<lent failure, and as far
as the large centres are concerned, sees no difficidty in abolishing it, the
Crown being always well represented, and the pieliminary investigations
being properly conducted. In several districts the same guarantees do not
exist, but this could be overcome with a proper system of preliminary
examinations under the responsibility and supervision of officials ad hoc.
Judge Mathieu does not see why, when a preliminary examination has
taken place and the justice of the peace or the police magistrate has found
there is matter for trial, the same question should be submitted for the
determination of the Grand Jury. It is true one can l)ring a bill of indictment
before the (irand Jury, before holding a })reliminary examination, l)ut in this
case, one might supplement the indictment before tlie (Jrand Jury l)y declaring
that, whenever there is no preliminary examination, tlie trial of the prisoner
cannot be gone on with without the permission of the court. He thinks that
the prelindnary examination, and in default of such, the authorization of the
court, is a sufficient protection for the accused person, and with these provi-
sions one cannot be subjected to vexatious trials at law. He says that this
exauiinati(m and one held in secret before the (irand Jury, is subject to many
inconveniences, and the right of presenting indictments to the latter is often
abused. He considers the (jtran<l Jury might be abolished, after placing a
safeguard, such as the above, to prevent vexatious trials at law.
Mr. Justice (Jill would entirely approve of the al)olition of the Grand
Jury provided some modification of the preliminary examination as actually
9»5
•l>;
practiced before the justices of the pence were nmde, they being, as a rule, in
the rural districts, not sufhciently educated and free from prejudice as to
always properly fulfil the ottiue.
Mr. ilustice bourgeois has found occasionally that the functions of (irand
ifuries were useless and that their secri'cy load to treacherous })ro8ecutions anil
gross injustice. " If the institution were alxili.shed I think the statute ought
to provide that nf)l)ody is to be ariaigned or ])ut on liis trial before l)etty
juries, unlexs a preliminary investigation has been made in his presence, by a
competent officer.'"
Mr. Justice Larue considers tliey are too much exposed to outside
influences and tluvt the summoning them is very expensive aiul out of
pi oportion with the services rendered.
Mr. Justice I^oranger. His experieni^e as attorney general and at the
bar and as a judge has convinced him that the system could be replaced with
advantage by a proper system of preliminary investigation coupled with the
appointment of pernriuent crown prosecutors.
NOVA .SCOTIA.
Attoruey-Cieueral Longley says that any change looking to tiie abolition
of the jury system will luiturally meet with prejudice from many minds
instinctively conservative in their tendencies. Hut the vital (jucstion is the
practical utility of the system. He says the jury systetn in all Uritish countries
haf been gradually undergoing a change for some time past. At one tinie no
cause could be tried in the suj)reme court except before a judge and jury.
The cumbersome and unsatisfact )iy character of tiie adjudication by un.«killed
men on points of a strictly technical character soon became apparent, and
juries were dispensed with except in certain cases. He says: "No incon-
venience, so far as I am aware of, r. suited from this sweeping abolition of the
functions of petit juries in civil cases. Indeed, it is the universal testimony
of the bench and bar alike in tiiis pi'ovince that the adminivtraticm of justice
has been vastly facilitated by the change " He points out that originally all
criminal matters in Nova Scotia, except petty cases, were adjudicated l)y the
supreme court. Since the recent passing of the Speedy Trials Act a majority
of ,1)^11 criminal cases are tried before county judges by the consent of the
per.sons themselves. In these cases there is no (jrand Jury, which body, in
reality, passes upon Ijut a percentage of the cases of alleged crime. The
favorite argument for the maintenance of the system of (irand Juries has been
that it was unfair to the citizen that he should be exposed to the odium of
sitting in a criminal box under a charge of felony, if there was not a fair and
reasonable case against him. "Speaking from my own expeiience in such
matters in Nova Scotia. I have no hesitation in stating tliat it is but rarely
that the exercise of the functions of Grand Juries have been of much value in
this regard. In the first place, as a rule, justices of the peace do not send up
for trial cases which are the result of personal malignity. The tendency of
justices is to lean to the side of leniency rather than severity in the adminis-
tration of criminal justice. So far as my experience goes juries have
repeatedly failed to find bills against persons, not from lack of abundant
evidence to justify and require the putting of the accused upon trial, but frrm
considerations of a personal and unsatisfactory character. " He sums up by
saying that in Nova Scotia, at the present time, the Grand Jury is not a
vitally important factor in the administration of criminal justice. Ui der the
caption of " Criticisms of the Judges Reviewed," elsewhere, I have ventured
to add an additional extract from the Hon. Mr. Longley's thoughtful and
valualde opinion.
Judge Johnston says that some time ago he formed the opinion that in
the present state of society (irand Jiiries are not required to the due adminis-
tration of justice, and are not essential to the legitimate security of the party
97
clmrged, hut that hih interests would he sufficiently guanled and suhserved
were he to he tried on tlie coniniitnient of the coniinitting inajiistnite, with a
limitation in eases of political oiFences or jjolitical liliels.
.Iuds<e Deshrisay says : " I am convinced from the arcun^ents of ahle
men on the suhject, and hy olmervation, that the time has fully arrived when
(« rand . I uriea nuiy well lie disjjensed with. The use of Huch a jury involves
unnecessary delay and expense All tiie steps which precede trial in a
criminal court could he as well taken hefore the time now fixed for the
aaaemhling of the («nind .Jury, and if there was not suflicient evidmee to
fdace on trial tiie party accused, he would so much the sooner resume, with
innocence estahlished, his true position anions; iiis fellow men. All ]>roceed-
ings up to, and including prosecutions, shouldTie taken hy an othccr appointed
for (ach county, or given districts, a man of respf)nsil)ility, knowledge ai\d
known integrity. His whole attention shouhl !•<! devoted to the duties so
devolving u])on him, and he should he paid a suitahle salary. The money so
exj)ended would he nuich more than saved in the increased security against
wrong-doing which must result from such appointments."
NEW IIKIJNSWICK.
Judge Wilkinson is classed as douhtful on the suhject of almlition, hut he
says that the retention of the system is not so im[)ortant now, when hoth the
rights of the Crown and of the suhject are so thoroughly understood and
defined ; when more rcasonahle distinctions aie nuide in the nature and
punishment of crime ; when the judicial tenure of oilicc is pernuinent and
protected hy safeguards ; than in other days when confusion and uncertainty
existed more or less in regard to the rights of the Crown and of the suhject
and t'.ie relative rights of suhjects hetween themselves ; when punishment of
tiie suhject for crime, and sometimes where there was little in the nature of
crime, were too often arhitraiy, cruel and sanguinary, and the judges them-
selves in the turhulent, stirring times referred to, were too often found to he
pliant time-servers and cruel partisan opj)ressors.
.Judge Steadman : I consider its aholition would he in the puhlic; interest
and would relieve the people from the performance of a lahor which they
have long felt to he an unnecessary hurthen.
Judge Landry : It woidd make the administration of justice less
expensive, less eumhersonie, more speedy and in nuiny cases less likely to
miscarry.
Judge Wedderhurn : Considers it has outlived its usefulness, which
opinion has heen confirmed and emphasized hy the passage of the Speedy
Trials Act by the parliament of Canada.
I'RIXCE HOWARD ISLAND.
Judge Kelly is of opinion it would be desirable, in the public interests,
to abolish the functions of (J rand Juries in relation to the administration of
criminal justice, and that their functions might be conveniently transferred
to district and county court justices, l)efore whom indictments and present-
ments could be submitted, and at briefer intervals of time than the present
procedure permits, and thus wlien one was falsely accused, a speedy removal
of the accusation would be accomplished.
MANITOBA.
Hon. Jos. Martin, Attorney-Ceneral : " lam very strongly in favor of
entirely abolishing Grand Juries. It does not appear to me that they serve
an}' useful purpose. In fact, my expeiience has been that the only occasions
in which they make themselves felt at all is where they burk the administra-
tion of justice by throwing out bills. They are a very heavy expense, indeed,
and I have no hesitation whatever in recommending that they should he
9S
entirely aholislied. As to thin I express also the views of otlior inoinbers of
tlie g()V«!iiiineiit."
Judge Ardagh' " I have long been of opinion tiiiit the (Jrand Jury
systeni had outlived its usefulneHH in connection with the administration of
criminal justice, and that a more nnitahle and economical way of accomplishing
the main pur]>()He which originally CttUed it into existence might and shouhl he
devised and adopted."
Ju<lge Hain : While expressing himself as lieing in favor of tlie retention
of the system, this learned judge says : "I am inclined to think it is not
necessary now that the case.i of persons conunitte<l for trial for criminnl
olFences should he re-investigated hefore they are put on trial hofore a common
juiy. 'J'he great majority ofpersons committed to jail for trial are committed
for offences tiiat can i)e tried by a judge under the Speedy 'I'rials Act, and if
anyone is connnitted witho\it cause, he will, or at all events can, elect t" ho
tried sjjeedily, and will l)e accpiitted and disciiarged. It seldom happen.s, I
think, that justices commit anyone for trial for suc:h offences as aie not triable
speedily, unless there is evidence that, at all events, laises a suspicion against
the acciist'd. Still it may happen that justices will make connnitments on
evidence that will not warrant them so doing ; and if (Jrand Juries are to he
done away with, it wouhl he necessary that a means shouhl he provided hy
which persons so committed could he discharged without having to wait for,
and without having to prepare for a trial. •■••»'! think the secrecy
of the investigation l)efore the (Jrand Juiy cannot well he defended ; and if
the investigations, such as they now make, were made jiuMiily they would
soon be felt to l)e suyiertluous. If their investigations were made public ones,
they would necessarily tend to become regular trials."
Judge Ryan; It is a source of consideraV)le expense, for which the
community receives no adequate return. It isfre(juently made the instrument
of injustice and spite by shielding from justice influential offenders and of
incriminating innocent persons.
imiTISIl (lOMIMHIA.
Attorney-General Davie is strongly of opinion that the (Jrand Jury should
be abolished, as he thinks that their utility, however desirable in former
times, and under other conditions, has now, so far as Canada, and particu-
larly British Columbia, is concerned, wholly ceased. The sunnnoning them
occupies public time, and when they are brought from a distance, causes the
waste of public money, to say nothing of private inconveniences and loss of
time. Moreover, in sparsely -populated districts, especially considering the
many exemptions from jury duty and discjualifications provide<l by the Jurors'
Act, the summoning of (Jrand Juries materially reduces the roll from which
common juries can be drawn, as in many parts of the province of British
Columbia both grand and petit jurors have to be selected from the same
class.
Mr. Justice Crease, for reasons set out at length, is of opinion that the
(irand Jury in British Columbia might safely be abolished in certain cities
which he names, but tiiat they would still be necessary in the outlying
districts of the countiy.
Mr. Justice Drake considers the abolishing of the Grand Jury will not in
any way prejudice the administration of justice.
Judge Spinks, in all the cases where the Grand tlury have exercised their
powers, ventures to think it would have been better if they had not
done so.
Jxxdge Harrison says that the plan adopted in British Columbia of
oUowing the government, as represented by the attorney-general, to assume
the responsibility and pay the expenses of prosecuting offenders for indictable
09
were relieved ..;«;el;;:.^'of't,Ion'tu.ur-'"''"^ '" '"^'""« ^"^' '^ ^'^^
NOKTH WKST TKKKITORIKS.
(It will 1,0 le^Ucotal there i, „„ ,:ra,„l .l,„y i„ H,„ N„,il,.VV„t.)
nu.u;;i;;&!i;;lr;:lri:,;,rt!',';r''''''''""""" "''''■■ '^""'■" -""'i '» -'-.ly
If i«'i"i*'"'' ''^""1*""' 'V'*' «'>^''*"«<l "o inconvenience for want of a Grand lurv
It IS a worn-„„t .naclune without any good practical effeci. ''"'^•
ONTARIO.
Judge Chadwick.
Judge Hamilton.
.Judge Lacourse.
.fudge I'ringle.
Judge McKenzie.
Mr. Justice Charland.
Mr. Justice Jctte.
yUKBKt'.
Mr. Justice Savary.
Judge Kelly.
Judge Spinks.
NOVA SCOTIA.
I'RINOK KDWARD ISLAND.
BRITISH COLUMBIA.
A SUMMING UP.
To sum up it woulil iippoiir :
iHt. Tlmt there In now a very eoiiHidemhle majority of the judges in
favor of aholinhing the Uraml .lury.
'2ml. Tiiat thin majority would bo largely augmented if a Hatisfactory
Huhstituto could he HUggested.
*{rd. That in the event of the ahilitiou of the (irand Jury there is rather
I Htroiig feeling against the county (trown attorneys Iteing Huhstit'ited, no
natter liow piiid.
4th. That there in a Himilar feeling against the magistrates heing
considered sufhcient.
5th. That if tiu! <Jran<l •lury is ilispunsed with a public criminal
prosecutor siiould be sulistitutcd for tiiat body.
6th. This otHcial should be appointed by government, hold his office
during good buiiavior, and be thoroughly (tompetent for the position.
7th. That he should l)e a barrister of a nun)ber of years' standing.
8th. Tlu.t the salary to bo paid should be sufficient to induce capable
nien to accej)t the oflice.
!)th. 'I'iiat the duties of the public juosecutor should, as nearly as
possible, be analagous to those now perforineil by the Orand Jury.
And it is respectfully suggested :
Ist. That, ill order to make any reform in the (J rand .Jury system
sfitisfactorily workal)le, there should be a final settlement of the constitutional
(jucstion now causing friction on thi.s subject, either, Ist, l)y an apjjeal to tlie
supreme court or privy council ; 2iu\, by concurrent legislation on the part of
the Dominion and provincial governments respectively, or, .Srd, Dominion
legislation to take etfect in such provinces as shall adopt such legislation.
2nd. That in order to raise a proper and adecjuate amount to pay the
salaries of the proposed public prosecutors three or more counties should lie
grouped.
3rd. That the public prosecutor should not be precluded from practising,
if he desired it, in the civil courts, which woidd be an additional inducement
for competent men to accept the position.
4ih. That the ])ublic prosecutor should be ret]uired either to hold himself
in readiness to travel into the different counties of his circuit when notified by
the sheriff that there was business for him, or at certain stated advertised
periods.
5th. That there should be such changes in the county attorney system
of Ontario as the proposed new state of things would require.
6th. That in the event of the (Jrand Jury system being continued :
Ibt. The secret character of the proceedings before that body
be done away with ;
2nd. An accused person should have an opportunity either in
person or liy his counsel (as may be considered expedient) to
challenge for cause, as is the case with the petit jury, any number
of the panel, even if he or his counsel should then be required
immediately to withdraw, and
• Srd. That there should be no change in the number of Orand
Jurors, but that the ancient number be still summoned in order to
prevent the dead-lock, which must occasionally inevitably ensue,
if the number be reduced to that required by recent Ontario
legislation.
CONCLUSION.
"And ao (Jod Have our noble KiiiK,
And guard us from lorg-winded Uilibers."— Ghav.
Tn tin's, (18 ill nil n. utters of roform, it will lie l.est not to liiiny. The
goiieiiil public may not iKMiuitc ifudy for so iiuUtal a fiiimgo, as they liavi'
not had much opportunity to discuss it. Thero must l)t! a Knidual. odmatinK
process, iind the friends of the movement, while lanu'nting this state of
things, and determined t(. remedy it. if possible, must '• learn to labor an.l to
wait It wdl not be h)ng before the force of public oinnion will become
irresistible.
Surely with an improved magistracy, an educated, experienced and
trained public prosecutor, a petit jury whose rniiks had been euriche.l by new
ami improved blood from the ranks of the (; rand .Jury, anil with a bench of
which any country might well be proud, there should be no reason to fear
that evil results would follow the abrogation of the graixl inipiest, with its
.serious defects, and the breaking over the land of a brighter day that shall
usher in a system whi(;h, while etlectively gunrdint; the liberty of tiie subject,
will at tiie same time possess the advantages of certainty and simplicity of
procedure, promptitude, inexpensivene.s8 and general utility.
NoTK. -.Since handing my M.S.S. to the printer I have ascertained that in
addition to the countries referred to on page 8, the (iraml Jury system does
not e.xist in the Bahamas. "^
KIMS.