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Tous las sutras axampiairas originaus sont filmAs sn commancant par la pramiAra paga qui comporta una amprainta d'imprassion ou d'illustration at an tarminant par la darnitra paga qui comporta una talla amprainta. Tha laat racordad frama on aach microficha shall contain tha symbol — *■ (moaning "CON- TINUED"), or tha symbol V (moaning "END"), whichavar applias. Mapa. platas. charts, ate, may ba iiimad at diffarant raduction ratios. Thosa too larga to ba antiraly includad in ona axposura ara filmad baginning in tha uppar iaft hand cornar, laft to right and top to bottom, as many framas as raquirad. Tha fallowing diagrama illuatrata tha mathod: Un das symbolaa suivants apparaitra sur la darniAra imaga da chaqua microficha, salon la cas: la symbols —»■ signifia "A SUIVRE ". la symbola V signifia "FIN". Laa cartas, planchaa, tablaaux. ate, pauvant atra filmts t daa taux da reduction difftrants. Lorsqua la documant ast trop grand pour *tra raproduit an un saul clicht, il ast film* S partir da i'angia suptriaur gaucha, da gaucha * droita. at da haut an bas. an pranant la nombra d'imagaa nAcassaira. Laa diagrammas suivsnis illustrant la mtthoda. 1 2 3 1 2 3 4 5 6 MOOCOfV niSOlUTION TIST CHAUT (ANSI ood ISO TESr CHAUT No. 2| 1.0 U tii |2.2 lifKi ■- I.I f^ 1^ 1.8 mti^g 1.6 APPLIED IIW1GE Ir. PRACTICE, CIVIL AND CRIMINAL. IN ONTARIO AN ADDRESS BY The Honorable WILLIAM RENWICK RIDDELL, L. H. D., Etc., of TORONTO (jMlice of the Kinni Bench Divn, H. C. J., Out.) ANNUAL MEETING OF THE New York State Bar Association NEW YORK, N. Y., JANUARY 20, 1912 SUPREME COURT OF CANADA NOV Z4 19T0 couR suPR"^^5 DU CA>3ADA PRACTICE, CIVIL AND CRIMINAL, IN ONTARIO AN ADDRESS V\'ith ihe Compliments of William Renwick RinnEM New York bxATE Bar Association NEW YORK, N. Y., JANUARY 20, 1<>12 PRACTICE. Civil. AND CRIMINAL. IN ONTARIO AN ADDRtSS BY The HoNt)RABI.E WILLIAM RENWICK RIDDELL. L. H. D., Etc., of TORONTO (JuMice ol Ihe King's Bench Divn, H. C. J., Onl.l ANNUAL MEETIN(i OF THE New York State Bar Association NEW YORK, N. Y , JANUARY 20, 1912 .7r, ,"i;:iiiii wliidi lia« jtist Ir'i-ii Koim; .mi- ll illiisiralis wliai I liavf ^i uMi-ii «ai.l. tliai tlit- liiiii- ■ >l till' AiiUTii-an lawyiT i^ laki-ii ii|i nioii- li\ oni-imi- liiiiial (|m■^ti ii^ecl in lliesc I'niied Slates, ilu- ('iinstiiiiiiiin ut Cai .a may Ik described by a panMly u|>erial I'arliaiDent in l'!n);land, can within the amhit ut tiieir jnrisilietiun do anytliinj; which is not naturally ini|K>ssil)le: indeed it is a ma.\iin among our I'auadian as amonj; i;n),disli lawyer that Parliament can do anythinj; except make a man a woman, or a woman a man. i Laughter. ) When I read the announcement lliat I was t.i read a paper to this .Association I was struck s.jinewliai with terror — and 1 made np.my mind I should at once throw myself uixin the mercy of the court and confess iiumedi- ately that I had no paper. That is due to more than one cause, in.ssihly; in part, perhaps, to the fact that I have tiiy own share of judicial teni|K'ranient. which, of course, you know is delined l>y .\lr. Dooley somewhat in these words. He says, " Ilinnessy, I would like to be a Judsje, 1 have {he judicial temperament." .Says Ilinncssv, "What is the judicial tetnperanient ? " Says Do.iley. "I don't like work." (I.auKbtcr. ) Rut in justice to inyself. I cannot say that is the only reason. ( l.an.nhter, i One other reason i, iliat we Iiave still in Ontario an aliMiivl siiper^'ition iliai a Jiislicc of Ills Majesty's Hendi n'e of my jnclicial lireiliren disrejiard that sn|ier-iition to a very great extent — one oi tlteni. indeed, when he received Her N.aie^ly's Warram a|i|>ciintinf; him one i>t Her jndges, inimediately |iroieeded to sell his library and Imy a new gnn. ( I-anghter. I AH of its do not have the courage that gentleman had. we are not so greatly daring, and con- .st(|nently some of its. at least occasionally, do a little Hidi- cial wiirk. In the short lime I was at home since 1 receiied the invi- tation to write a |>a|K'r on this snhject. I was exceedingly lins\ and since 1 left home I have been in a continued series \>\ imellectnal dehanchery in which there was no "morning after the night before" only because the night before extended into and. as it were, absorbed the morning after: and I have not had time to reduce any- lliing to writing. lint it may ]>erhaps console vott a little bit to know that some vears ago I w oie for my friend. Dr. I,awson. the Dean of the Faculty of Law in the University of Missouri, a short article upon the Omrts and the Practice in Ontario. I did iifit know until I came to this city, and indeed not until yesterday, that he had published it; but you will find soiuc of it in the I'orty-fourtli \'olume of (he .American Law Review, at page 507. If. however, you or your secretary desire I should write a paper so that it may appear upon your minutes. I shall be deligliled to do so as soon as I get home and shake off that teiuperanient which I find growing upon me as years go by. and get a little leisure so [ can do so. The courts in Ontario are all one court (speaking of tlie Superior Courts). Before rSRr we had luo conctn- rem Law Courts ami a Cimrt nt riianci-ry. In iSSi, I'.il- lowing the mother country — and the mother c(nuilry tol- lowinK tile State of New York, hccause of course tlie State of Xew N'ork was the pioneer in llial rej^ard — we abolished all the com'ts then existing; in the rro\inee of Ontario, which were the two Common l.aw ('(■uri>, the Court of ("iiancery and a Court of Appeal; and made one ^'eneral conn, ihe Supreme (.'ourt of Jiidicature. That we divided in two hranches. one the Conn of Appeal and the other the High C. A fourth Division has since heeii adiled to the llij;h Court. .\ jud,i;e can sit in any of these Divisions or in the C'lurt of .\p])eal; any Judge of the Supreme Comt of Judica.ure luay to-day he trying a nuirder case and to-morrow he sit- ting in the Court of .\p|)cal or Divisional Court; hut as a rule the High Court Judge remains in the High Court and does not sit in the Court of .\ppeal — although he may do so when called uixni by the Chief Justice. In om* practice there is nn a mortgage — \vhate\er anybody wants to sue for is sued for by way of a writ. In this writ the cause of action is set out in the most general terms. The writ is served on a coqxiration by serv- ing an otilicer of the corporation, on a lunatic by serving the lunatic or his committee or the person in whose charge he is. It may be served (^n a married woman; because there is no distinction between married women and rulier women in that regard in Ontario. On the service of the writ, the defenilant is given ten days to appear. One may si)ecially appear' simply lo dispute the amount of damages. If that is done, then it is referred to a master at once to determine the amount of daniaj;es witliout further jilead- iug. If there he a general appearance, the practice is dif- ferent. Some writs may be endorsed specially, as we call it. that is |)rattically what you might call li(|uidated claims set out on the writ. If an apj)earance be entered to a specially endorsed writ, an application may be made by the plaintiff, if so advised, to the Master to strike out the ap])earance and cause judgment to be entered if he can show that there is no defense. That can Ix" shown by atVidavit on the ])art of the plaiiitil'f himself. If the defendant does not answer that, judgment goes against him. 1 le may answer by affidavit, he may be exam- ined under oath before a master on his affidavit, and if it appears there is really no (juestion at all to be tried, and the appearance is simi)ly for the purj>ose of delay, the appearance is stricken out and judgment entered. If there is a plausible case tu be tried, the Courts do not cause the apj)earance to be struck tmt. A statement of claim is delivered by the plainiifi. the statement of claim corre- sixmding to the "Id bill of complaint in cfpiity or to tlie declaration in tlie common-law c"mt>. 'Ilie statement of claim, according to our rules, must set out facts, not ci>u- clusions of law. All the facts upon which the plaintiff desires to base any claim, must be set out and the state- ment of claim is divided up into paragrapiiti lor con- venience. Now. it may be that the statement of claim does not disclose any cause of action. Demurrers in form are abolished; but we have denuirrers in sub- stance. .\pi)lication may be made to tlie Court to strike out the statement of claim as disclosinjj no cause of action ; and if that ap|)ear. judfjuiein will tie entered for defend- ant by the Court, iniless the jiIaiinitT is in [nisiiion to amend, .\fter the statement of claim has lieeu ilelivered and is not deuuirrable. usiuf,' the old expiession. i. t\. ii cannot be struck out. the defeudarit may not be able to answer, may not be in a |Hisition to nnderstaml precisely what the i)laintitt"s claim is. and he may demand panicu- lars. If particulars are not furnished he mav ha\e par- ticulars ordered by the .Master or Jud,i;e. Then he serves and files a statement of defense. Tlie statement of defense must set out al.so the facts on which the defendant relies for a defense. I am sorr)- to sa_\" — perhaps 1 ou^hi not to say that I am sorry, because I am one of tlio^e wlio have. collecti\ely. a ri.i^ht to clianj^e it if thought fit — I am sorry to sa_\' that in tuir practice wliere an alle.i;ation in the statement of claim is not speciticall}' aecifically denied. -\.ffain. suppo.se the statement of defense sets up no real defense to the action, a tnotion may be made by tlie plaintiff to strike out the defense and have judgment in precisely the same way as the defendant had a right to move to strike out the plaintilt's statement of claim. As >"'in ,i> the ■.laii'MK'ni nf ik-ti'iiM' i> in. citlicr party lias a nulii 1.1 MTVL- wlial is called an "Order to Prciduce," direct- mi; ihe cipiinsit,' party tn pr.idnce nii iiatli, all documents, C"pie~ c.f diiciiiiieiits. etc.. etc.. which lie lias or has had in Ills pissessinn heariii;; i.ii the issue ti, lie tricil. Then either |iariy may lie esaiiiiiieil under ciatli hy the other j,'enerally upon the whole ca^e. It" a cor])oratioii he one of the parties to ilie action, an litticer of the corpoi-ation is selected hv the o|ipoiienl, who may he examined, Xow. there is a j,'rcal deal of difference of opinion as to the value of this '■ eNinnination for di.scovery " as we call it. Ill practically every case in Ontario there is an exam- ination for discovery. That increases the cost of the action undoubtedly. I heard the other day. very much to my astoni.shiiieiit. at a meeting of the Ontario liar .\ssociation which I attended lielore 1 had the pleasure of meeting vou here, one very eminent iiiemher of the Kar say that an e.xaniinatiou for discovery was absolutely useless except to show tl" opiKisitc side what one's case was. In iiiv own experience. I did not find this to he the case. Mv e.xperi- ence (and 1 know the experience of a ;,'reat manv others practicing at the Har is the same ) was that the " cxamina- tioii for discovery " is an exceedingly valuable pi-oceeding. When you examine the other side for discovery you find out what his case is. It is true you must disclose, to a cer- tain extent, your vn ca.se; but that is not always of much importance. I have found that the examination for dis- covery leads 10 the settlement of at least one-third and perhaps more of the cases which would otherwise be tried, and I have found it exceedingly valuable. But opinions diflFer in that regard. In a great many instances the plaintiff also requires to make application to the Master in order to have particu- lars ticlivercd. Particulars may be required to be deliv- eml (if the .stati'imMit oi tia- (IfU-iisu. iIku i> hIi^u paniciilar 111:11 UTS ihc (k'ffiicliiiit relics mi fur liis ilefeiise. When deliveriiij,' a stateiiiciit of ilefcnse. tile ilefemlaiil may coiiii- terclaiiii fur any claim lie lias ajiaiiisl the iilainlilT .jii any cause nf action. In an action liroii;;lit on a iinjiiiis>, ,rv note a connterdaim may he hronijlit of a claim for lihel — with this provision, liouever. that if the Conrt sees that the issues shr.nlil ii,,i he tried lonether the I 'oui'l nijiy strike out the connterdaim, or order it to lie trie.l ai a diiVerem time from the j;eneral action. Then we come doun to the trial. We ha\e llie itirv system the same as yon. hm I il,, n,,' iliink ue are i]iiiie so — I shall not say crazy. I knou hetler than to say that to lawyers — hnt we are n n si . wililal ( that is .-i ^ 1 « , ,rd 1 to the jnry system ;is yon are. 'I'liere are cert.iiii ca~es such as maliciuns prosecnlion. lihel. slander, action, ,,i that character which are tried In a jury unless li, ,ii' p.inies a;.;i-ee that they he tried hy the .Inil.ne. In nio-t ins;.-uices ihey are tried liy the jury — I mean, false impri^onmen; and that son of thiii.i;-. l-'.i|nitahle issne, uhich liefore llie Jndicalnre .\cl of iSSi were Irieil in the ( oint of (h.-in- eery, are tried liv the Jndse alone, unless the Jnd.ije direct them to he trieil liy the jnry. It may sometimes ha|ipeii — I dare say it ha|ipens in the experience of every lawver — that an e(|nilahle issue, an issne that is really nimialile. comes np aiv ,ifter all it Inrns ont to lie a pure i|nestion of fact, it tnrns out that the case will depend npon the deter- mination of a i|nestioii of fact, anil that |)erhaps npon the credihility of two witnesses; ami a Jnd.^'e sonielimes likes to cast the responsihility npon a jnry and let a jnry tind ont which one of those two men is lyin,;;. if not huth of tlieni. .\ccordingly the Judge has the |»iwer to direct e\en an eipiilahle issue to he tried hy a jtirv. (Jmsiilc ijf tlicse 1 Iiavc alreaily siKikcn of every issue 111 i.iir llifih fijiirt ut Justice, iir in mir County Courts, may lie trieil by a .Iu(lf;e if lie sees fit. If either party to an action desires a case to be tried by a jury rather than by a .luilKe, he tiles what is called a jury notice. If no jury notice is filed the case j,'oes on the non-jury list and is tried without a jury unless a Jndf;e sees tit to transfer it to the jury h-t. If a jury notice he served, the case j,'oes on the jury list, and when it coines clown for trial the Judge may say. " I will try this case myself." and there is no appeal from that. The Jndfje is ahsohne master of the situation. Sometimes a plaintitY or defendant asks that the jury notice be dispensed with and the case tried without a jury. Sotnctimes both of them agree it should not be tried with a jury, sometimes they have agreed it ought to be tried by a jury; but whatever they may say. the Judges have it iti their own ixiwer to try a case without a iury; in a very great inajority of ca.ses the cases are tried with- otU a jury e.Ncept those particular cases I have mentioned, and added to that, accident cases, which are Incoming mire and more frequent. The old French systetn, the Canadian system before i/.VJ. was to tiy all issues without a jury and by Judges alone. When Canada was coiKptered in 1759 bv the Rriti.sb. and particularly in 1763 when the Royal Pnx:la; 1- ation was issued, the English law was introduced and juries were introduced also. The I'Vench Catiadians could not understand how the Engh.shmeti would sooner have their pro|)erty rights determined by the agency of tailors and slioemakers than by Judges. That same idea is still prevalent in Ijiwer Canada. Oueljec ; and it is becoming more ano,se of it. If the jury finds a verdict, tlie .Indge lias no power to award a new trial. There must he an ap|ieal. .\u appeal may he taken to ilie Divisional Cour> of the High t'ourt of Justice. The Divisional Court con- sists of three Judges. We have four Divisional Courts, and any memher of any Divisional Court may sit in any Divisional Court, When counsel, as tliey sometimes do. .skinnisli for Judges — I supixise that is entirelv unknown in your practice. — hut it is said that in Ontario they do, and they |)ostiKine their cases not uncommonly, it is said, on account of the ahsence of necessary and material Judges. (Laughter.) \"ow, I am glad that e.xcites your amusement, hecause it proves to nie vou can- not have anything of that kind in your practice — ulien coun.sel have skirmished for Judges, very often tliev find that very Judge whom they are anxious to avoid sitting up in the Divisional Court smiling at them. The grounds of appeal to the Divisional Court are very much as in vour apjjcals here, verdict against evidence, against the weight of evidence, sunmse, ahsence of witnesses, e.sclusion of evidence and adnn'ssion of evidence, and all that sort of thing. We do not have very mttch hother ahout adniis- sidii (jr rejtftioii ni i-viilence in our Courts; unless «f can see that the exclusion of cviilence or tlie a|>c-al> sncceeon the •jround of the non-ailini>- sioii of evidence, or ii ,■ ailini>sion .if cviilence which onj,'ht not to have been achnitteil. If a case is tried ln'fore a .lnd},'e. anro|>erly rejected evidence — and 1 may >ay that this i> tlie rarest of all contiiif;encies. liccan^e as a rule we admit the evidence subject to objection, and ibeii we never all'.w it to intlnence lur mind, of course — if a Jiidf;e lias reft:sed the evidence 'Vipropcrlv. the Divisional Court as a rule does n,,i >fnd the c;i>e back for a new trial, bin the t'ourt often >a> >. " \\"c will >it on Midi a d;iy. y..u can lirini; the evidence yc^n doired the liidye to hear ,iiid wc will be.ir it Iierc." We hear the evidence an.! deierniiiie the cise llien and there. ■■ iih..ui ,eiidin.; it back with all the ri~k. cN]ieii>c. incoinciiience, annoyance an! tr..nble of a new trial, i Applause. I If there is a row abniit ilie pleailin.ijs — because even yet we have some ])eople wii.j talk alK>ut pleadings. tli.>us,di pleadings are pretty nearlv defunct in our Courts, we kn.iw tlieiii by name and kn.iw them by sij;ht. but we jiay very little attenti.m lo tlieni — if there is any row about the pleadiiif^s we sav. " \ery well, we will amend tlie pleadinfrs," If a lawyer says. " If tliat amendment lia.l Iicen ni.-ide in tlie Cnirt bel.nv. we slio'.ild have had other evidence." we may say. " \'erv well, what day will suit y..u? We sliall hear your witnesses." One of our snlistamial rules and iL-j,':inl •■i tile time uniliT wliicli ct-naiii pn.ci'i-ilinjr- --liniiM Iii.' taUfii, no (lisrfnanl nf icTiiiiiinli,t;y, afOM'diii^' l.i ..ur ]>i-ai1Kf. Ixifs a man win. lia> a riyhl. of Ir- rii,'lu, l)i~iTL;anl of form iloivs noi nnllifv tin- |iriii'tT.liMj;>. I lu'M if the Divisional Court is tluini^lit liy uiilu'r j.art) to have made a mistake, there is an appeal to the Conn of Apjieal eoni|K,seil .pf live .Unices. Tho-c appeals are hear.l In ilie full Conn of live Indices, hnt are not very common I he more eommon practice i- to appeal from tlie trial Jnilge (hrecl to llie (..nrl i.f .\p|>tal, >kippinj; llie l)i\i>ioiial ( onrt ; and tho^e are not -o very conniion either. These apjicals from the trial .liid.t,'e to the C.mn of Ap|R-al direct may he heard In three Jndf;es of the Court of .\ppeal or all the live. I will read yon froiti the article which [ wrote some yetirs af;o of the appeaK in ji)oS. " In i()ii«, i.e;^ cases were tried hy the Ili.i;h Conn. iSci of these were .•'p|je;iled ti' the Divisional Conrt and lyt dismissed. 37 allowed. 10 varied and j still undisposed of. The appeals direct trotii trial to the Coint of .\i)peal were dj ; j8 were dismissed. 14 allowed. S varied. 1 _• remained nndi.s|),.sed of." Because even at thai laie dale people tried to settle their cases. .Ml ap|)eals from the Coniny Conn, which li.is jurisdic- tion up to six- or eij,dit hntidred dollars, come to the Divisional Court, as appeals from the IliKh Conn of Justice conies to the Divisional Conrt. Countv Court Jtid,i;es are tiicmliers of our Rar of fn years' standint;. They are ap|K)inted hy the Dominion .Xdttiinistration for life. The practice is precisely the same as in the lliudi Court. C)f .ill the cases in the Divisinnal Court. 544 in all. includin.!? Mte 180 from trials, only 43 appeals to the Court of .Apiwal. of which -'3 were di.smi.ssed. 11 allowed. '4 .i varinl. Tlic uIkivc li|;nrcs :ire ilcrivnl frniii the repnrt iif tlif lns|)cci(ir (if l.f«:il Offires. IVcnn the Court ni A|>|)eal ti> till- Supreim' Court at Ottawa in n/nX are rfiHirtcil ill the Sii|)retiie Cmirt ke|Kirts, i^ cases. 7 (hs- iiiisseil. _> allciwed I there tiiaylw. nn dmiht are. smiie cases nut rc|»irteil. hnt very |V« 1. I'niiii the Cmirl ni' ,\|)|ieal. iinixirtaiit cases may be taken 111 the Siipreiiie Ccmrt iif Canada. Rarely is iliere an apiieal fnmi tlie Divisiunal Cmirt tu the Cniir' ,i,' Appeal; still rarer is there ati a|>|)eal frmn the Cuiirt .if ppeal to the Sitprenie Conrt of Canaila, which is an entirely different ( iiiirt. If yiin p-actice in l"aifa;■ in); to the Supreme Conrt of 1 anada — and particularly in constitutional cases (Ijecanse I am floiiij; tn withdraw wli.it I said about the Constitution a minute or two ago) —an appol is taken to the Judicial Comnn'ttee of the Privy Council in Downinf; street. West- niinsier. We have a kind of constitution ( althonf;h we do not call it that) liy the British Xorth .America Act. The subjects of lejjislalion are on a particular sithject, or whether the province has a right to pass legislation niKin that |)articnlar .subject; we do not, however, generally talk about "constitutional" and "uncon- stitutional." but we use the terminology " iiltia vires " and " intra lircs," (Xcasioiially ami, as I have >ai(l. iwniiii- larly ivliere a c|iiestii)n iif ultra viris is cmiccrned, an apical is taken to tlit Frivy C'oitiKil. I have t;iv<.'ii an accminl uf the Privy Cdiniiil in an adilress tn the Missmiri liar As^n- cialiim. printed in 44 American Law Review, iwjje Mix. In the I'rivy I'unncil in iijoSare re|>.>rted sx ap|)eals imm tlie Ciiiirt vnicc. althonj,di the Dominion may make anythiuj; a crime. The other dav I said to a lawyer who was arguing 'o me alniut a certain matter being ultra -Arcs. " If the Dominion Parliament saw- fit they could make it a crime ixinisbable by capital punish- ment for a man to chew toljacco." The Domiuion has jiower to make anything a crime; it has ab.solute juri.s- iit ill iSi)j Sir Joliii rii.iiii|i.,iii, llif tlii'ii I'riiiii- Mini.tiT, iKniiin lii'iMi a Jiiilyi- liini.cll in \ova Scolia. .aw the pr. .- prii'ty nf cip(|if\iiiK lilt i-riniiiial 1 and ai'cMnlinnly, with tlif a.ssisiaiu'i' (if alili' la\v>\T> in ii,. , ImiH'. nf rarliainiMi! .Ill I1..1I1 .i.lf, ,,f p..liiic.. he in i,Si,_. cln-H up a i'...k' ..f ilk' i-riniinal law. Tln' jmlicaiiiiv Aci ..f |S,S| viTv ik'.-irlv pn.M'il ilk. cU-aili nf „,iin. ,,f ilii. ,,1,1 fiinjiy iiii'ii an. I cni- 111.11 l.-iw men aK.. in ihe l'r..v incf ..f (Inian..; Inn thai ua- ii..iliinH li. Ilk' .li.niay uliiili -pit-ail in tln' r.m!,-. .1 tiu' lawMT. will. |i:aiiii-(.'il in ilk- irinitiial C'..in-N. wlk-ii tlk- (■..iK- ..f i.Sij.. wa- pa "I- I. Tin- .li.iiik-ii..n hi-iui-i-n lVl..iiii-. anil iiiiMk-iiH-.nii.r. ua> alinli.hi-il. l-'.M-rv criiik- was mack- an imlicialik- ..liVii.t-. All tin- l.caniifnl litik- pitfalls and lii.lcs thai ..Id i-riniinal law\i-i-- u-til 1,. liin.w ■■11 wi-11 ahi.nt in indii-lnH-iil-. etc., arc lille.i np and (l.iiie aw;iy wiili. Parliament pn.vided that ilie indielmeiit nii;,'hi lie in the .simplest fiiriii. s, , |,.n^ as it set imt and explained ti. the allefied eriniinal what it .vas he was eliar!,'ed with. If ilk- inilietiik-m used the wi.r.U ,.f the statute that was eni.ii.i^h. 1-1. r instance, an inilictmciit fi.r nuinlcr is ne\cr 111. .re than three lines I. .1114:, and it w..iild read like this, " 'I'he jnry f..r nir I.urd the Kim; present that John Smith on the 7th nf Septemher, i()i 1, at the City of Toronto, nnirdcred 'I'l.ni Junes." That is all there is aln.nt it. There are no pitfalls in the criminal law. If a per.si.n is eharj,'ed with a crime, an invcstijjation is made hy a ma),'islnite. sometimes hy a coroner. Under the old practice, of c.n'.rse, the fiiuliiig at the coroner's JiM|m-l i-i'iilil \k hiiil lii'i',.ri' a |jclit jiin. That i^ n.. I' iiyiT our law. l-.M-rytliiiiy ot a i-piniinal iiatiiri.' v\liiili I- tn U' irifil liy illc IMkIi Court i-i.ini'^ ln-|.,ri- a Krainl jury, rill- aa-ii>f(l lir ln-lorc a Mayi.iratis lu' In- tin- riyht t" liavt Iitn full ilciVin; y.im. nit... uiincs-CH lallfd ami iNaiuiiii'il : ami it ai thv roiuliisi..n ilu- Ma),'- i-lrali' iliiiiks ilicri- i- no ra-i'. lie i- ili>iiii,-.i-.| — .■ilthuu(,'h the prijsi'i-iitcir iiiav ili'iuaiii! tn he licniiwl .nir tn |iiM,i^-iiii', in «liii-|i ca,i. In. i-,,ni,., \n:i,,n- ihi- ni'xt Cr.iirt e ni' iri-ason. iiiunkT and a few othfr-. uiiliin twi-iity-frjiir hours of a |itr.-on ln-in),' i-oiiiniilti'd to jail he must he liroiij;lit hcfori- il' • t'ouiity Court Jiid);i' Tlif Coutitj Court JikIki' • i JucIki' of inferior jurisilittiou. Iiut lie must have heen a barrister for ten vears liefore lii.s a|ipoiiitniem and oiiKht to know as niuih law as a 1 li},'h Conn Justice — anil many of ilieni do. Cpon l>einn lirontjlit liefore the County Court Jndye. the alleged criminal is told in simple laiiKuaKe with what he is charged. He is tolil, ■■ N'liw. yiju have a rit;ht to lie tried liy a jury Iwfore the next Court of C(im|)etent jurisdiction" (mentioning the Court, when it is to he held, etc., so that the prisoner will know I. "or you may lie tried l)y nv forthwith with- out a jury." In nine cases out of ten the innocent man, and in (|uite a number of cases the guilty man, thinks he might just as well take his chances with a Judge as with a jury; and so he is tried by the Judge. .\ simple form of charge is drawn up, aneal of five Judges detenuines that i|uesiion of law and whetner the Judge was right. In mosi cases I am glad to say it lias l>een found he was right, and .so the appeal goes by the board. There is a provision in our Code wliicli has never so far as I know been called upon: and llial is iliis: in case the conviction be al'lirnied I)y the Court of .\ppeal by a divided Court there is an ajipeal to the Supreme (."onrt of Canada. That has never yet so far as I know l)een called into practice: our Court of .\ppeal have alwavs been unanimous. This is the simple, every-day practice wliicli has lieen found very aehantageous and beneficial. 1 have never in all my thirty years's experience at the Ontario Bar and on the Bench taken more than thirty minutes to find a jury, 19 even in a murder case. I liave never yet — and 1 liave een charged with having exer- cised that function — none of the men that I defended got hanged I am thankful to say. though there are two "T three in Kingston i>eniteutiary to welcome me when 1 cliance to go there (laughter I — [ have never yet in all my exiKrience (except in one easel seen it take as niucli as four days to try a murder case. In murder cases hefore me I have never hecn more than a day and a ciuarter. anil in most ca.ses less than a day. We allow live ex|>ert witnesses <»n each side and that is all. .\n expert witness unless he has examined the prisoner liimseli is. uf course, simply going to give opinion evidence. We hring him in Court to listen to the evidence. If lie rei|nesi~ it he iTiay take the man and examine hint and tlicu give an opinion. We do not have six or eight pages of a hypu- thelical ipiestion. The expert is asked simple. ])articularized questions. Our insanity law is simple. 1 see that iii\ judgment was atTirmed hy the Court of .\ppeal since 1 canic to this city in a ca.se where a man was charged with murder. The man waited for another on the street and shot him. The tirst doctor for the defense was called and was asked. "Was this man insane?" " Ves. insane." "In what fonti?" ".\n incurahle form of insanity, paranoia in an advanced stage." "Did he know the nature and quality of his act?" "Certainly." "Did he know that what he was doing was wrong? " " W'hat do you mean hy wrong?" says the doctor. I said, "Wrong in the sense of heing against the law." Tie says. " Ves. undouhtedly." "What then was his mental condition?" "He knew what he was doing, he knew it was against the law, but he JO liarl ,-11. incMMilile inipiiU- ic, ,1,, tliai act, his puwer of i"''^'"""" »as ;;niR- aii.l hv c.iild „„t help sh.M,tiiig the :".-"i" 'Ihe niher ,loct..rs agreed. I eharf,'ecl tlie jurv, " If >nt, hehcve uhai these ,l„etor,, say. or rather nnless n,', v.nir '■ath yuii think you kii.m i>elier tliaii these ductors. then it is y.iir chity 1,. Ii,„l a venhct .1 ,:;„ihy. We are an ir.,n l'eo,,le and ue iiave an in.n law. We must enforce tlie law .-.s »e hnd ii, \.,u have nn more ri-ht to cl,aiii;e the la» than 1 have, and I have nu more right to cha.i,i;e the hiw than y,.nr minister lia~ a ri,t;ht to take the word 'n..! ' out of some of the commandinenis and tell vou to ,.1r., ,he eomtimndmcni as so atnen.le.I _ ,o .,„ and lie. steal' and ■"in-dcr-. Onr law is. if a ,nan. however in.sane he mav I'e. knows what he is ,loin.i; and knows that that is against the law. it makes ,„, ,lifference th-. he is insane - he "HIM not he found not guilty ou the gnnnid of insanity. Om- hK says to a man who alleges he has an irresistible '■"pulse. • I shall hang a ro,H.- np in front of vonr nose an.l see if that xvon't help you some.' " ( .\ppla„'se. I We are not truuhled much with expert witnesses. (Lattghter.) If an e.x|«?rt witness attempts t„ give an opinion as to what ■ ittght to he (lone with the accused, he is checked — that i.s none of his bn.siness. it is not for him or for me. it is for the [executive to say. Ottr civil practice we have found very convenient very speel case- thai UMT caniu l,L-i,„e mc inr ,lcUTMiinai)..ii ilial hl-mi in llie I'rivy Cnuncil. I Iu..-,nl ,„ ,\|„il, and in huu- ,.| tlu- lollou injf vear it had ^unc thnuiKli all ill..- fana.lian I i.nn,. and had hmi linallv .k-icMiiihifd hy ilii- I'rivi Cdimcil. llu-iX' is no rea-.,n why any case sh..iild ii,,t ]„■ mnchuled in .nu- cnnniry in k->> ihan ci-himi nionthv. TIut^. j, ,„, reason why a man ,, ho has met with an accideni shonl.l not have his case tried anywhere thn.n.s,d.ont the conntrv in less than six nionihv The ,,m,iice. as I have ~ai,l, we have fonnd convenient. There are tuo i.lcas »liich are llie hasis of the practice ot law in different conntries: one is that the (.'onrls are a sort "t umpire sittinsj upon the watch to see that the tw,. me,i ti!,'ht .,nt this dispnte according to the rales of the faille. It IS not a matter of very ^real im|),>rtance whether a man j;ets liis rishts or not. Imt it is a matter of enormons imix.nance tiiat the smarter man shonld ^et a verdict. That is the ol.l idea. The other idea is that a man shonld -et his rifjlns even altlKuiKh the record (^ets in a shocking state. Von rememlwr when they talked alxnit the l-:nj;lish Common Law Proce.lnre .\ct. Maron I'arke said. "Think of the stale of the recrd'.- Record [ snp|»..se I ,,ni,dit to call it on this comment. " Tln'nk of the state of the record." That was the old idea. The learned Haron snlfered j;reatlv. It is fair to say he had a new lca.se of life when he moved in the Hou.se of Lords as Lord Wenslevdale. Voii will. „,, donht. rememher .Sir William ICrle. when Raron Parke said. ".My monument is to he found in tlie si.xteen volumes of .\Ieeson and Welshy." replying. " Parke, if there had l«en .seventeen, the iieople of l-:n.i;Iand would have ri.sen up and wiped out the fourts entirelv." ( Wise's Index had not then heen puhlished. and s,', the C.ml, esca])ed extinction. ) 22 The other the