R. v. Porter, supra. Contracts to indemnify bail are contrary to public policy and are not enforceable. R. v. Porter [1910] 1 K.B. 369. Grounds for granting bail]—Reference is to be had to the following considerations:-1. The nature of the accusation: R. v. Baronet, 1 E. & B. 1; R. v. Butler, 14 Cox's C.C. 530. 2. The nature of the evidence in support of the accusation: Re Robinson, 23 L.J.Q.B. 286; R. v. McCormack, 17 Ir. C.L.R. 411. 3. The severity of the punishment which conviction will entail: R. v. Gottfriedson, 10 Can. Cr. Cas. 239; Re Robinson, supra. The character or behaviour of the accused is said to be irrelevant. 4. Whether the sureties are independent or are illegally indemnified by the accused: R. v. Butler, 8 L.R. Irish 39, 14 Cox C.C. 530; Herman v. Jeuchner, 15 Q.B.D. 561; R. v. Porter [1910] 1 K.B. 369; R. v. Greig, 23 Can. Cr. Cas. 352, 356 (Sask.). The propriety of admitting to bail for indictable offences which were formerly classed as felonies should be determined with reference to the accused person's opportunities for escape, and to the probability of his appearing for trial. R. v. Fortier, 13 Que. K.B. 251, 6 Can. Cr. Cas. 191; ex parte Maguire, 7 L.C.R. 59 (Que.); R. v. McNamara, 18 B.C.R. 125. To determine this point it is proper to consider the nature of the offence charged and its punishment, the strength of the evidence against the accused, his character, means and standing. Where a serious doubt exists as to his guilt the application for bail should be granted. If, on the evidence, it stands indifferent whether he is guilty or innocent, the rule generally is to admit him to bail; but if his guilt is beyond dispute the general rule is not to grant the application for bail unless the opportunities to escape do not appear to be possible and it is consequently almost certain that he will appear for trial. R. v. Fortier, supra. The fact that the application for bail is not opposed either by the Attorney-General or the private prosecutor may also be taken into account by the court or judge. R. v. Fortier, 13 Que. K.B. 251, 6 Can. Cr. Cas. 191. Where there is danger that accused persons, committed for trial, may purposely allow their bail to be forfeited with the view of avoiding seandal, the court, on an application to admit them to bail, should require the bail to be of a substantial amount. R. v. Stewart (1900), 6 Man. R. 257, 4 Can. Cr. Cas. 131. Where a prisoner committed for trial on a charge of manslaughter would ordinarily be admitted to bail, bail will not be refused because the Crown prosecutor swears to a belief that he can prove the offence to have been murder. R. v. Spicer (1901), 5 Can. Cr. Cas. 229. It is for the court to exercise a sound discretion, and if satisfied that not withstanding the ordering of bail the prisoners are, in view of all the circumstances, likely to be forthcoming at the proper time to answer the charge, bail may be ordered. R. v. Keeler (1877), 7 P.R. 117, 120 (Ont.); R. v. Wood, 9 Ir. L.R. 71; R. v. Gallagher, 7 Ir. C.L. 19; R. v. MeCartie, 11 Ir. C.L. 188. If the offence be not very serious and the depositions disclose no more than slender grounds of suspicion, bail may be allowed. R. v. Jones, 4 U.C.R. (O.S.) 18 (Ont.). The court should not, on an application for bail, weigh and decide the question of credibility of witnesses. R. v. Keeler (1877), 7 P.R. 117, 123 (Ont.). Bail not usual in murder cases]-In cases of murder, and the more so after a preliminary investigation by a judicial officer, an investigation which ought to be thorough, and at which the accused person has the right to give any such relevant evidence as he chooses, and after a commitment for trial as the result of that investigation—and still more so in cases in which a true bill has been found also the rule is that the accused person should not be admitted to bail, the temptation to escape from a trial in such a case being too great to leave much, if any, great hope that bail to any amount would overcome it. But there well may be some exceptions to that rule, including the statutory one contained in the Habeas Corpus Act. See Regina v. Bowen (1840), 9 C. & P. 509; R. v. Rae (1914), 32 O.L.R. 89, 23 Can. Cr. Cas. 266; 31 Car. II, ch. 2, sec. 6; R. v. Gentile (1915) 24 Can. Cr. Cas. 342 (B.C.); re Bartlemey, 1 E. & B. 8; R. v. Guttredge, 9 C. & P. 228; R. v. Greenacre, 8 C. & P. 594; R. v. Chapman, 8 C. & P. 558; ex parte Corriveau, 6 L.C.R. 249 (Que.); R. v. Keeler, 7 P.R. 117 (Ont.); R. v. Murphy, 2 N.S.R. 158; R. v. Mullady, 4 P.R. 314 (Ont.); R. v. Coady, Morris' Newfoundland Decisions 58; McCraw v. The King (1907) 16 Que. K.B. 505, 13 Can. Cr. Cas. 337; R. v. Fitzgerald, 3 U.C.R. (O.S.) 300 (Ont.); R. v. Higgins, 4 U.C.R. (O.S.) 83 (Ont.); R. v. Blythe (1909) 19 O.L.R. 386; R. v. Monvoison, 20 Man. R. 568; ex parte Huot, 8 Que. L.R. 28; ex parte Maguire, 7 L.C.R. 59 (Que.). Under the Habeas Corpus Act, 31 Car. II, ch. 2, sec. 7, the Crown is not obliged to proceed with the trial at the first assize after the commitment. If the prisoner held for a felony petitions in open court at the first sittings to have his trial proceeded with, the Crown must indict him at that sittings or he will be admitted to bail. But the duty of the Crown is said to be fulfilled if the case is traversed to the next sittings of oyer and terminer, and the Crown must then be ready to proceed with the trial at that the second sittings of a competent court following the commitment. R. v. Keeler, 7 P.R. 117 (Ont.); R. v. Bowen, 9 C. & P. 509; R. v. Mullady, 4 P.R. 314 (Ont.); R. v. Rae (1914), 32 O.L.R. 89, 23 Can. Cr. Cas. 266. Practice on bail orders]-The order for bail should not leave the question of the sufficiency of the sureties solely to the Crown officer without reserving the determination of their sufficiency to the judge himself, or to a justice of the peace, in case of disagreement on that question. R. v. Greig (1914) 23 Can. Cr. Cas. 352, 30 W.L.R. 286 (Sask.). If an order has been made by a county judge for bail, but because of some irregularity in the warrant of deliverance the accused was rearrested, the judge may make another order de novo, even if he could not amend the first order. R. v. Greig (1914) 23 Can. Cr. Cas. 352, 30 W.L.R. 286 (Sask.). The form of order may be that, upon the defendant entering into a recognizance before the committing justice of the peace, the defendant himself in an amount fixed, and two sufficient sureties in amounts also fixed, to the satisfaction of the justice, the defendant be admitted to bail to appear for trial at the next court of competent jurisdiction to answer the charge stated in the warrant of commitment or any other charge which may then be preferred against him in respect of the depositions on the preliminary enquiry. An order for bail on an appeal by reserved case may fix the amount of bail and delegate to a justice of the peace the ascertainment of the sufficiency of the sureties and the taking of the recognizance itself. R. v. Johnston, 16 Can. Cr. Cas. 296. Even after conviction affirmed by the Court of Appeal, bail may be granted pending a further appeal to the Supreme Court of Canada if such further appeal lies. R. v. Brunet (1917) 27 Que. K.B. 224. It has been held that a superior court has jurisdiction to rescind an order made for bail on proof being made that fictitious bail had been put in. R. v. Mason, 5 P.R. 125 (Ont.). Order upon application for bail. 701. Upon application for bail as aforesaid to any such court or judge the same order concerning the prisoner being bailed or continued in custody, shall be made as if the prisoner was brought up upon a habeas corpus. Origin]-Sec. 604, Code of 1892; R.S.C. 1886, ch. 174, sees. 93, 94, 95. Bail on habeas corpus where warrant of arrest is from another province]-On habeas corpus the Supreme Court of Alberta has jurisdiction to admit to bail one arrested on a criminal charge laid in another province, though the arrest be legal, and to make the condition of the recognizance that the prisoner shall surrender himself to the proper officer in the province in which the charge is pending against him, the superior courts of the several provinces being, in criminal matters, auxiliary to each other. R. v. Hughes (1914) 6 W.W.R. 1120, per Beck, J. Warrant of deliverance. 702. Whenever any justice or justices admit to bail any person who is then in any prison charged with the offence for which he is so admitted to bail, such justice or justices shall send to or caused to be lodged with the keeper of such prison. a warrant of deliverance under his or their hands and seals, requiring the said keeper to discharge the person so admitted to bail if he is detained for no other offence, and upon such warrant of deliverance being delivered to or lodged with such keeper, he shall forthwith obey the same. Origin]-Sec. 605, Code of 1892; R.S.C. 1886, ch. 174, sec. 84. Warrant for the arrest of person bailed about to abscond. 703. Whenever a person charged with any offence has been bailed in manner aforesaid, it shall be lawful for any justice, if he sees fit, upon the application of the surety or of either of the sureties of such person and upon information being made in writing and on oath by such surety, or by some person on his behalf, that there is reason to believe that the person so bailed is about to abscond for the purpose of evading justice, to issue his warrant for the arrest of the person so bailed, and afterwards, upon being satisfied that the ends of justice would otherwise be defeated, to commit such person when so arrested to gaol until his trial or until he produces another sufficient surety or other sufficient sureties, as the case may be, in like manner as before. Origin]-Sec. 606, Code of 1892. Application by sureties to render accused to gaol]-See also sees. 1988-1093. Delivery of accused to keeper under warrant of commitment. 704. The constable or any of the constables, or other person to whom any warrant of commitment authorized by this or any other Act or law is directed, shall convey the accused person therein named or described to the gaol or other prison mentioned in such warrant, and there deliver him, together with the warrant. to the keeper of such gaol or prison, who shall thereupon give the constable or other person delivering the prisoner into his custody, a receipt for the prisoner, setting forth the state and condition of the prisoner when delivered into his custody. 2. Such receipt shall be in form 30. Origin] Sec. 607, Code of 1892; R.S.C. 1886, ch. 174, sec. 85. Form of gaoler's receipt to the constable for the prisoner]-Code form 30, following sec. 1152. PART XV. Definitions. SUMMARY CONVICTIONS. Interpretation. 705. In this Part, unless the context otherwise requires,(a) territorial division' means district, county, union of counties, township, city, town, parish or other judicial division or place; (b) the court' in the sections of this Part relating to justices stating or signing cases means and includes any superior court of criminal jurisdiction for the province in which the proceedings in respect of which the case is sought to be stated are carried on; (c) district' or county' includes any territorial or judicial division or place in and for which there is such judge, justice, justice's court, officer or prison as is mentioned in the context; (d) common gaol' or 'prison' for the purpose of this Part means any place other than a penitentiary in which persons charged with offences are usually kept and detained in custody: (e) clerk of the peace' includes the proper officer of the court having jurisdiction in appeal under this Part and, in the province of Saskatchewan or Alberta and in the Northwest Territories, means the clerk · of the Supreme Court of the judicial district withir which conviction under this Part takes place or an order is made. Origin]-Secs. 839 and 900, Code of 1892; R.S.C. 1886, ch. 178, sec. 2; R.S.C. 1886, ch. 50, sec. 102. Sub-sec. (b)" The court"; "superior court of criminal jurisdiction"]-Code sec. 2, sub-sec. (35). |