LES PREMIERES PROCEDURES

La première procédure qui eut lieu devant le tribunal par les avocats de la défense fut le 11 octobre, à l'ouverture de la Cour, une motion de M. Fitzpatrick, appelée en droit " a challenge to the array." Comme je l'ai dit ailleurs, trois jurés étaient entrés clans la salle des délibérations, sans avoir entendu l'adresse du juge et après que leurs collègues eussent commencé leurs travaux. MM. Fitzpatrick, Lemieux et Greenshields s'opposèrent vigoureusement à ce qu'il fût permis au jury ainsi composé de faire un rapport. M. Fitzpatrick parla en ces termes. Je crois qu'il est préférable de publier dans la langue qu'il les a faits les discours et les motions du savant avocat.

M. Fitzpatrick. — I appear for Mr. Ernest Pacaud, who is coin mitted to stand his trial at the présent term of the Court of Queen's Bench on a charge of conspiracy ; and, before the Grand Jury make a return on any of the bills presented to them, I wish to d^aw the attention of the Court to a condition of things which I may fairlv qualify as somewhat extraordinary. When the panel of Grand Jurors was called on Monday, the lOth October, at the opening of the Court, seventeen Grand Jurors appeared and were sworn. A foreman was then chosen, and the usual oath was administered to him and to the other Grand Jurors in the regular way. The Grand Jury was then charged and instructed by the judge who presided,as to the nature of their duties and the subject matter of the différent indictments to be submitted for their enquiry was explained to them. Subsequently an interpréter was sworn to assist them during the examination of the witnesses, and constables being chosen and sworn by the Court to attend on them, they were sent to their room. Several indictments, and among them, one against my client, were

then submitted to the Grand Jury as thus constituted. Tins Grand Jury now cornes into the Court to return some bills ; and instead of finding it made up of the seventeen jurymen who appeared upon the panel, and were sworn, charged and empowered by the Court to deal with the indictment against my client, we are face to face with twenty jurymen, three of whom must hâve been illegally and improperly added to the others. I say illegally and improperly, because to my mind it is perfectly clear that the Grand Jury was complète Avhen the seventeen jurors above referred to appeared upon the panel and were sworn and charged by the judge ; and it was not in the power of the Crown or of the judge to add to this Grand Jury at any subséquent period of time however short.

The form of oath administered to the foreman and other members of the Grand Jury, necessarily implies that each grand juror must be présent when the oath is administered to the foreman, and that the swearing of the foreman and of each of the grand jurors is one continuous act. Archbold says, speaking of grand jurors :

" They are called, sworn and charged, and as each grand juror " answers he goes into the jury-box. The number must be at least " twelve and must not exceed twenty-three. They are sworn in this " form, and first the foreman thus : — You, a? foreman of this " inquest shall diligently inquire and true presentment make on ail " such matters and things as shall be given you in charge. The " Queen's counsel, your fellows and your own you shall keep secret. " You shall présent no man for envy, hatred or malice ; neither " shall you leave any man unpresented for fear, favor or affection or " hope of reward, but you shall présent ail things truly as they " corne to your knowledge, according te the best of your under- " standing. So help you God.

" The remaining jurors are then sworn thus : — The same oath " which your foreman lias taken upon his part you and every of " you shall well and truly observe and keep on your own parts. So ■" help you God.r

And further, Archbold says : — " The form of oath administered " to the grand jurors is of ancient origin and should be substantially *' observed."

On thèse facts the first question to be considered is whether or not Mr. Pacaud, before an indictment is found against him, has the right to appear by counsel and draw the attention of the Court to this alleged irregularity in the formation of the Grand Jury.

On this point I refer to Bishop, Criminal Procédure, Vol. 1, par. <S77, where it is stated : — " That if a person is held to answer to an " indictment which a particular Grand Jury may find, he is entitled " to interfère in the process of its organisation."

Furthermore, Haie, Pleas of the Crown, Vol. 2, p. 155, foot note, says : " Objections to the sufficiency of the grand jurors must be " made before indictment found. "

The second question to be considérée! is as to whether or not the objection is to be taken by way of a challenge to the grand jurors or by plea in abatement after indictment found.

On this point I refer to Bacon's Abridgement, Verbo Juries letter A, : to Haie, Pleas of the Crown, Vol. 2, p. 1 55 ; 2 Hawkins, P. C. 307. Further, I refer to Waterman's Notes on Archbold's Criminal Practice and Pleading, Vol. I, p. 539, where it is stated : " A person charged with a crime may challenge any number of the " Grand Jury. " And, further, '• The law on this subject, as laid " down in Hawkins is that any one under persécution for a crime " may before he is indicted challenge any one of thepersons returned " on the Grand J ury. "

Ist. Chitty, p. 30. " If a man who is disqualitied be returned " he may be challenged by the prisoner before the bill is presented."

1 hâve been able to find but one case, that of Rex vs Sheridan, 21 State Trials, p. 543, in which a contrary rule was laid down. That case was a State prosecution for a political offense in Ireland in 1811 ; and in this respect bears a close resemblance to the présent case ; but that is not a reason why the rule there laid down by three out of four judges should he accepted against the unanimous opinion of the text-writers. I hâve gone through the books and do not find that any of the modem Criminal Law writers accept the rule laid down in Sheridan's case. On the contrary, a long séries of unbroken décisions in the United States Courts adopt the rule laid down in Chitty, Haie and Hawkins.

Admitting that différences of opinion exist on this point, to use the words of Bishop, I say : " There is one principle which must be " borne in mind, viz. that where a wrong lias been done, the party " who suffered from it should be permitted to find in some way " redress. "

In this case a wroog has been done. Criminal authors such as Hawkins, Bacon, and Haie with the universal practice in the United States point to a challenge as being the proper course to adopt to redress the wrong ; and but one case, that of Sheridan, suggests that a plea in abatement is the proper course. In this case, however, it is impossible for me to accept the suggestion that I plead in abatement, because Archbold says, p. 125 : " The judgment for the " Queen upon a plea of abatement in misdemeanors is final and the Défendant eannot plead over. "

Such being the law, as stated by Archbold, I feel that I would

improperly imperil my client's interests if I were to adopt the course

suggested in the Queen vs Sheridan, as judgment against my client

•on this point would be équivalent to a plea of guilty on the charge.

Referring now to the merits of the challenge, I wish co remark that it is a proceeding adopted by the counsel of the défendant only ; but I take it that in a case of this sort it is the duty of counsel to avail themselves even of the most technical objections ; and while

I entertain no doubt of the eventual acquittai of my client, it is a duty which as a légal ad viser I hâve to perform, as I feel that I am compelled to neglect nothing that by possibility can lead to an acquittai on this very unjust charge. Independently of the interests of my client, in a case of this sort, which, in spite of ail that can be said ano^ done, is essentially a political case, one in which one political party is seeking to attack the former leader and one of the very prominent supporters of another political party, it is necessary that the public at large should be satisfied that nothing whatever has been done that could in any way be considered or construed as being an attempt to improperly influence the impartial administration of justice. And if, as has been done hère, it is permissible for the Crown, afber the Grand Jury has been selected, sworn and charged, to send three other grand jurymen to the gran i jury-room — men who hav'e not appeared on the panel, who hâve not been sworn in the présence of their foreman as the forms of oath above quoted necessarily require they should be, and wTho hâve not been properly instructed as to the nature of their cluties, then, it would be permissible to say that the Crown can, after grand jurymen hâve refused to appear, make enquiry as to their political antécédents, and, if the enquiry prove satisfactory to the Crown, get thèse men to attend on the Court and take part in the délibérations of the Grand Jury.

In this case the Grand Jury had actually begun their délibérations on the indictement submitted to them against the Défendants, when three more were added to them ; and if after the délibérations are actually begun it is permissible to send Grand Jurymen into the room, then as a logical séquence it would be permissible to send men into the room after ail the évidence had been taken before the Grand Jury, so that they might simply give their voice in the tinding of an indictment without having heard the évidence.

Ail the authorities are to the effect that in addition to the Grand Jury being properly sworn, it is necessary that they should be properly charged in order that they may be empowered to exécute their duties. This will be found in I Chitty, Criminal Law, p. 314 ; Blackstone's Commentaries, p. 303 ; 4 Stephens' Commentaires, p. 362 ; 4 Brown à Hadley, p. 400.

A question somewhat similar to that now under discussion came up in the case of The Queen against Cunard et al in New Brunswick, and it was decided by the Suprême Court, after full argument, that an indictment which had been found by the Grand Jury, one of the number of which was interested in the proceeding, was null and would be set aside upon motion after plea and verdict. That being the case, the defence subrait that if, as they contend three Grand Jurymen went into the Grand Jury room without having been properly sworn, and their naines are mentioned in the caption of the indictment founcl against Mr. Pacaud, the indictment should be set aside."

The judges after hearing the arguments décidée! that they would be governed by the ruling in the case of The Queen vs Sheridan above referred to ; and Mr. Fitzpatrick asked if in view of the opinion expressed in Bacon's Abridgement, Haie, and Hawkins, and in simply a majority judgment of a Court in Ireland given at a time when the rights of prisoners were not always scrupulously considered, especially in political cases, it would not be proper to reserve the question for the considération of the full Court, particularly, as it is admitted that the question had never been discussed in this Province. This the judges refused to do, and the juries brought in their indictment.

The challenge thus being dismissed, a motion to quash the indictment was made, bas^d upon the same grounds, which was âlso dismissed, and the judges again refused to reserve the question for the considération of the full Court.

The motion was in the following terms :